Loye and Whittle v Forte Taverns Limited and others [2006] NZLLA 1055 (4 December 2006)

Last Updated: 4 February 2010

Decision No. 1055/2006 –
1058/2006

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of applications pursuant to s.132 of the Act for variation, suspension, or cancellation of on-licence number 007/ON/116/2005 issued to FORTE TAVERNS LIMITED in respect of premises situated at St Lukes Shopping Centre, 80 St Lukes Road, Mount Albert, Auckland, known as "Moa’s Nest"

AND

IN THE MATTER of applications pursuant to s.135 of the Act for suspension of General Manager’s Certificate number GM/007/82/03 issued to GARY WILLIAM FOREMAN; and General Manager’s Certificate number GM/007/951/06 issued to DANIEL DARNIN CLOWES

BETWEEN JASON PETER LOYE

(Police Officer of Avondale)

AND GARY SELWYN WHITTLE

(Auckland District Licensing Agency Inspector)

Applicants

AND FORTE TAVERNS LIMITED

First respondent

AND GARY WILLIAM FOREMAN

AND DANIEL DARNIN CLOWES

Second respondents

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Ms P A Ballard

DECISION

We have before us applications filed jointly by Senior Constable J P Loye of Avondale Police, and Mr G S Whittle, Auckland District Licensing Agency Inspector, for variation, suspension or cancellation of an on-licence held by Forte Taverns Limited in respect of premises situated at St Lukes Shopping Centre, 80 St Lukes Road, Mount Albert, Auckland, known as “Moa’s Nest”; and for suspension of two General Manager’s Certificates.

The grounds for the applications in relation to the on-licence are that the premises have been conducted in breach of the following provisions of the Act:

Section 115 – Manager to be on duty at all times when liquor is sold; and
Section 155 – Sale of liquor to persons under 18 years of age; and
Section 165 – Unauthorised sale or supply; and

Section 168 – Allowing intoxication or disorderly conduct on licensed premises; and in breach of the following conditions of the licence:

Condition (b) – Allows the sale of liquor when the premises are being operated as a restaurant; and

Condition (e) – Requires the licensee to comply with host responsibility plan; and

Condition (f) – Requires the licensee to comply with the requirements of the Act in relation to the provision of liquor to prohibited persons.

The grounds for the applications pursuant to s.135 are that the managers have failed to

conduct the premises in a proper manner.

More particularly it is alleged that between 21 April 2006 and 8 October 2006, these premises have become the focus of attention of the Police and District Licensing Agency as a result of a number of incidents described in the applicants’ following summary of facts.

The respondent company holds a restaurant style licence with trading hours from 7.00 am to 2.00 am the following day. A condition of the licence is that liquor may only be sold when the premises are being operated as a restaurant.

The Incident of 21 April 2006

On 21 April last the business failed the test in a controlled purchase operation. Liquor was sold to two under-age volunteers who had been instructed to attempt such a purchase pursuant to s.162(5) of the Act. The licensee was subsequently spoken to about the matter and warned that action would follow before the Authority.

The Incident of 2 June 2006

On 2 June 2006 at approximately 2.30 am, serious disorder broke out between two groups of patrons of the premises, who had allegedly spent the evening drinking and playing pool. The incident occurred in the 3rd level car park following the exit from the premises of the two groups.

The event was recorded on closed circuit television and subsequently culminated in charges being laid before the District Court. Although the licensee was not charged, there was sufficient evidence to indicate that the persons involved had been consuming liquor at the “Moa’s Nest” prior to the incident.

The evidence included statements that both groups had been at the premises for the purposes of socialising and drinking. Neither group entered the premises with any intention of dining, and no restaurant style meals had been offered or requested.

The Incident of 8 June 2006

On this date the premises were visited by Police staff and a District Licensing Agency Inspector. Persons present on the premises were playing pool and consuming liquor, with little evidence of anyone eating. A number of teenagers were entering and leaving the premises, which appeared to the reporting authorities to be operating in a manner more akin to a tavern.

Following discussion with the duty manager a letter was subsequently sent by the licensee to the reporting authorities rebutting their findings, and accompanied by interior photographs of the premises. These photographs clearly showed a daytime operation involving café patrons, some accompanied by children. None of the photographs included the dance floor area, large screen television or pool table which had been the focus of patrons’ interest on the evening of the Police/DLA visit.

The Incident of 23 June 2006

At approximately 10.10 pm the Police and Agency Inspector visited the premises, and prior to their entry they could hear loud music emanating from the “Moa’s Nest”.

Only three or four persons were dining, with a number of other patrons purchasing handles of beer from the bar. A group of about 10 persons were seated at a table drinking, and displayed no evidence of having eaten or that they intended to do so. The duty manager, identified as Gary Foreman, was approached and spoken to.

It is alleged that conversation was difficult because of the volume of the music being provided by a DJ. The manager, in his alter ego as the licensee, did not agree with the findings of the Police and Inspector that the business was operating in the manner of a tavern.

The Incident of 24 June 2006

At approximately 10.00 pm St Lukes Centre Security called the Police to report a fight outside the entrance to the “Moa’s Nest”. The protagonists had dispersed prior to Police arrival. Inquiries revealed that the premises had been hired out for a private function, for which no special licence had been sought or granted.

The Incident of 15 July 2006

At approximately 11.30 pm on that evening, an Auckland District Licensing Agency Inspector was present in the mall when she heard loud music issuing from the “Moa’s Nest”, and disco lights could be seen.

On entering the premises the Inspector found only the disco and dance floor lights, and bar spotlights were on. A DJ was playing music, and patrons were dancing and standing around drinking.

The Inspector asked to speak to the duty manager, Gary Foreman. A staff member was sent to find him. While waiting for the manager the Inspector walked around the premises. There were about 50 people present, and no evidence of anyone eating.

The manager was eventually located at a neighbouring coffee shop. The Inspector ventured her view that the business was operating like a tavern. Mr Foreman disputed this contention and said that it was a restaurant and that they were hosting a 30th birthday function. No special licence was in force and the licensee’s view was that he did not require one.

The Incident of 10 September 2006

At about 12.15 am the Police conducted a visit to the premises. They were informed by patrons that a ‘Persian Dance Party’ was in progress. The duty manager was Gary Foreman.

Upon entry the Police noted the presence of about 30 patrons. The manager told them that food was available, but there was no evidence of food at any of the tables.

The premises appeared to be operating as a disco/dance party venue, with the patrons mingling generally, dancing and drinking. The manager was asked whether he had a special licence for the event, to which he replied that he had not sought one.

Upon leaving the Police collected a flyer which advertised a further ‘Persian Dance Party’ to be held on 7 October 2006, between 8.00 pm and 2.00 am the following day.

The Incident of 30 September 2006

At approximately 1.10 am the Police visited the “Moa’s Nest” as part of a routine patrol. Prior to entry to the premises the Police encountered a number of people in the car park who stated that there were two 21st birthday parties in progress on the premises.

On entry the Police spoke to the duty manager, Gary Foreman, who confirmed that the parties were as described, and he stated “there are just a few people here for drinks.” The Police asked whether a special licence was in force for the event and the licensee replied that there was not. He contended that the customers had been there for some time and had eaten.

The Police interviewed several of the patrons who revealed that they had been present for between one and three hours, they had all been drinking, had not bought any food, and stated that they did not know that food was available.

A member of the door staff said that the business hosts ‘lots of functions’, and the functions for the week are written on a blackboard behind the bar.

The Police noted the presence of approximately 50 persons on the premises. There was no indication of food on any of the tables.

The Incident of 8 October 2006

At approximately 12.25 am the Police, Agency Inspector and an Auckland Regional Public Health Officer visited the premises. As they approached the entrance to the mall loud music could be heard coming from inside. The distance from the mall entrance to the premises’ entrance is approximately 50 metres.

A rope barrier, attended by a doorman, restricted access to the premises, outside which signs stated:

‘Persian Dine & Dance
Saturday 7th October
$10 Cover Charge
Includes Finger Food’

Upon payment of the entry fee patrons received a stamp on their hand. The duty manager was present at the entrance and was identified as Daniel Clowes.

Mr Clowes was spoken to in relation to the operation of the premises and he was asked whether there was a special licence in force, to which the response was ‘no’.

The manager accepted that the business was not operating as a restaurant at the time of the visit. The chef was not on the premises and only bar snacks were available. The manager stated that the licensee had instructed him to put out finger food, and that the function was to cease at 2.00 am.

Mr Clowes was informed that there appeared to be breaches of the conditions of the on-licence and that an enforcement application may be a likely consequence. The reporting authorities terminated their visit at 12.50 am.

At approximately 1.10 am the Police communications centre received a call in relation to a group of about 30 persons involved in a fight at St Lukes Mall. To paraphrase the evidence it appears that the disorder involved patrons of the “Moa’s Nest”, who had begun fighting inside the premises and spilled out into the mall area with items of furniture being used as weapons.

Upon entry the Police were confronted with persons who were demonstrably affected by alcohol, many of whom were aggressive towards the Police. There was a strong smell of smoke within the premises. The staff apprehended that if the Police were to exit the premises at that juncture there was a likelihood of further disturbance.

In the event the Police exercised their authority under s.174 of the Act and required the staff to close the premises. The Police subsequently cleared the car park area, during which exercise they were confronted with argumentative patrons who had to be threatened with arrest in order to get them to comply with Police instructions.

The Police observation was that the manager was co-operative throughout the incident, but he had clearly failed to discharge his responsibilities in the manner required by the Act.

Conclusion

As a result of this chronicle of incidents the Auckland Team Policing Unit has been required to visit the premises on a number of occasions. The Unit finds it disturbing that such a high incident rate has occurred in a restaurant, the type of licensed premises traditionally accepted as being low-risk in terms of liquor related offences.

The Unit’s contention is that the manner in which the business has been operated is ‘dubious’, considering that it purports to be a restaurant. The summary of facts reveals the comment on a number of occasions that, because food was available the licensee did not accept that the business was trading in the manner of a tavern.

In our decision Gordon Brett Pay v Baba Louies Limited LLA PH 208/2005, we were faced with a similar contention from the operator of licensed premises in Invercargill, whose licence contained the identical wording that appears in condition (b) of the “Moa’s Nest” on-licence; viz ‘On such days and during such hours as the premises are being operated as a restaurant.’ We said:

“It will be noted that the wording is in the present tense. The restaurant must be operating to enable liquor to be sold. The wording is not has been operated, or could be operated, or capable of being operated. In order to sell liquor the premises must be being operated as a restaurant. The New Shorter Oxford English Dictionary defines “operate” as “To work, expend labour on” or “To be in action be functioning”. Both indicate activity. It follows therefore that in an operating restaurant, there will be chefs or cooks who are working, a kitchen which is functioning, and diners who are eating. Put in another way, operating a licensed restaurant means more than having kitchen and dining facilities available.”

Of further concern is the fact that the “Moa’s Nest” has appeared in the Police Alco-Link reports on 13 occasions for incidents including assault, fighting, disorderly behaviour, excess breath alcohol (both instances involving drivers under 20 years of age), injury with intent, obstructing the Police, possession of offensive weapons and possession of cannabis. This is an unenviable record for any licensed premises, but is especially so when associated with a business which the licensee portrays as a restaurant.

A number of the functions described in the applicants’ summary would appear to have required a special licence to allow them to take place. Despite repeated approaches by the Agency in this regard, no such licences have been sought.

It is also recorded that Auckland Regional Public Health has an ongoing issue with alleged breaches of the Smoke-Free Environments Act 1990. While that Act is not of direct concern to the Authority, we make the point that failure by a licensee to adhere to any statutory requirements may well call into question that licensee’s suitability.

These applications were to have been determined by the Authority at a public hearing but the respondents have instructed counsel to intercede on their behalf.

The respondents have acknowledged that the grounds for the applications have been established, and that suspension of the on-licence and the manager’s certificates is an appropriate course of action. As a consequence an accommodation has been reached between the applicants and the respondents whereby recommended terms of suspension will be imposed by the Authority, by consent, without the requirement to convene a public hearing.

We are grateful to the parties for reaching a resolution and we are prepared to deal with the matters on the papers. In doing so we would caution the respondents to give due consideration to the observations of the applicants, who will no doubt continue to monitor the business closely.

Should any further incidents occur in the nature of those described in the summary of facts now before us, we feel bound to comment that the licensee may be in danger of attracting a further application from the enforcement authorities, seeking cancellation of the licence, or a variation of trading hours.

Having considered the recommendations from the Police and Agency Inspector we make the following orders:

(a) On-licence number 007/ON/116/2005, issued to Forte Taverns Limited, is suspended for four days from 7.00 am on Friday 5 January 2007 until 7.00 am on Tuesday 9 January 2007.

(b) General Manager’s Certificate number GM/007/82/03, issued to Gary William Foreman, is suspended for 21 days from Monday 8 January 2007.

(c) General Manager’s Certificate number GM/007/951/06, issued to Daniel Darnin Clowes, is suspended for seven days from Monday 15 January 2007.

DATED at WELLINGTON this 4th day of December 2006

______________________
B M Holmes
Deputy Secretary

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