Smale v Donaldson [2006] NZLLA 381 (31 May 2006)

Last Updated: 3 April 2010

Decision No. PH 381/2006 –
PH 382/2006

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of a joint application pursuant to s.132 of the Act for the suspension of on-licence number 023/ON/148/2001 issued to IAN ELLIOT BEDFORD, LLYNLEY ANNE BEDFORD AND GRAHAM EDWARD WILSON (trading in partnership) in respect of premises situated at 221-223 Old Taupo Road, Rotorua, known as “West End Tavern”

BETWEEN JULIE ANN SMALE

(Rotorua District Licensing Agency Inspector)

HENRIETTA SHREEVE DONALDSON

(Police Licensing Officer of Rotorua)

Applicants

IAN ELLIOT BEDFORD, LLYNLEY ANNE BEDFORD AND GRAHAM EDWARD WILSON (trading in partnership)

Respondents

AND

IN THE MATTER of an application by IAN ELLIOT
BEDFORD 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: Ms P A Ballard

HEARING at ROTORUA on 25 May 2006

APPEARANCES

Ms J A Smale – Rotorua District Licensing Agency Inspector – joint applicant and in opposition to application for renewal
Sergeant W R Scott – NZ Police - joint applicant and in opposition to application for renewal
Mr G S McKay – representing respondents and applicant for renewal

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] There are two applications for consideration by the Authority. The first application is jointly brought by the Police, and the District Licensing Agency Inspector. They seek the suspension of the on-licence issued to Ian Elliot Bedford, Llynley Anne Bedford and Graham Edward Wilson, (hereafter called the partnership). The premises are situated in a small shopping centre within a larger residential area in Rotorua. The business trades under the name of “West End Tavern”. The on-licence permits trading hours from 7.00 am to 11.00 pm, Monday to Sunday.

[2] The application is based on the following allegations:

“(a) That the licensed premises have been conducted in breach of the following provisions of the Act:

Section 25 (Requirement to display on-licence)

Section 115 (Manager to be on duty at all times)

Section 165 (Unauthorised sale or supply of liquor)

Section 168 (Allowing an intoxicated person to be or remain on licensed premises)

Section 172A (Failing to appoint manager in accordance with s 26 of the Act, and failing to ensure s.115 complied with)

(b) That the conduct of the licensee is such as to show that the partners are not suitable to hold the licence.”

[3] The application was filed with the Authority on 27 March 2006. The particulars relied upon to support the application relate to a series of licensing incidents and omissions noted during licensing and policing visits between June 2002, and February 2006. In particular, the concerns relate to the absence of a certificated manager when liquor was being sold to the public, and an apparent willingness by the licensees to place unqualified members of staff in a position of managerial responsibility, contrary to the Act. There were also allegations of disorderly conduct by patrons, and allowing intoxicated persons to be on the premises.

[4] The second application is for the renewal of one of the partner’s General Manager’s Certificate. Mr I A Bedford was first granted his General Manager’s Certificate in 2001. It fell due for renewal on 20 March 2006. The application was opposed because of the licensing incidents and omissions which brought about the application to suspend the licence.

[5] The file indicates that the respondents took over the business in 2001, and the on-licence was renewed without opposition in 2003. The enforcement application appears to have been taken seriously by the partners, all of whom attended the hearing. They consulted Mr G S McKay who is the Regional Manager for the Hospitality Association of New Zealand. With his assistance, the parties have had a number of discussions and meetings. As a result they have been able to reach a large measure of agreement and understanding about the way the premises are to be operated in the future.

The Hearing

[6] The respondents accepted the allegations at their face value without the need for the calling of evidence. Some of the allegations predate the renewal of the licence, and will therefore have less impact in terms of any possible sanction. The District Licensing Agency Inspector alleged that during three routine licensing inspections on 11 June 2002, 28 August 2004, and 15 December 2005, the on-licence was not displayed. Furthermore, on three occasions, on 28 August 2004, 15 December 2005, and 17 February 2006, no certificated manager was present when the premises were trading.

[7] The Inspector made the general observation that Mr I E Bedford appeared to lack a basic understanding of the requirements of the Act, particularly in relation to the requirements surrounding the appointment of managers. She stated that until late February 2006, Mr Bedford had believed that if an employee had applied for a General Manager’s Certificate, then that person could automatically work as a suitably qualified manager. Furthermore, she stated that Mr Bedford had taken the word of an employee that he or she was the holder of a certificate, without further checking. This had resulted in the breaches referred to above.

[8] The Police referred to three incidents in late 2004 where persons had been taken into custody for detoxification. They stated that they had been drinking at the “West End Tavern”. In addition the Police had found that on 17 December 2004, the named duty manager’s certificate had expired. On 8 August 2005, the Police had found that the 20-year-old duty manager was unqualified.

[9] Finally, the Police confirmed that on the night of 5 February 2006, the duty manager had been assessed as highly intoxicated. She told the Police that this was her last night with the partnership. However, it was clear that she was in no position either to set an example to other staff members or patrons, or to manage the premises effectively and ensure patron safety.

[10] Mr McKay did not call evidence, but made a number of submissions aimed at mitigating the impact of any sanction imposed by the Authority. He contended that the partners were committed to the continuation of the plan they had implemented to improve the performance of the premises. They had signed an 11-point plan to make sure that there would be full compliance in the future. He produced the new Host Responsibility Policy which had been drafted by the partners. This Policy included the statement:

“Staff will always watch for anyone becoming intoxicated, and refuse to serve them. They will also be watchful for “friends” buying them drinks.”

[11] Mr McKay confirmed that the partners were registered to attend a Host Responsibility course. He submitted that the partners had decided to take a greater role in carrying out the “duty manager” responsibilities. A new food menu had been devised. He stated that management had thought that it was only necessary to display the on-licence renewal document, but they were now aware that it was the actual licence which has to be on public view. He said that in future all potential managers would be checked out with the District Licensing Agency. Finally he stated that on-going training would continue on a regular and continuing basis.

[12] Both the Police and the District Licensing Agency Inspector took a conciliatory approach. They argued that either there should be a suspension of the on-licence for a period to be fixed by the Authority, or the matter should be adjourned for a reasonable period in terms of s.132(7) of the Act. As far as Mr Bedford’s General Manager’s Certificate was concerned, it was suggested that the renewal period be truncated to give Mr Bedford the opportunity to show that the proposed retraining was having the desired effect.

The Authority’s Decision and Reasons

[13] Section 132 of the Act requires a two step approach. First the evidence must be examined to see that the allegations have been established to our satisfaction. In this case, it is clear that there have been breaches of the Act, and questions raised about the suitability of the partners. If we are satisfied that any of the allegations have been established, then we have a duty to decide whether it is desirable than an enforcement order is made.

[14] In this case, establishing that an intoxicated patron had been allowed to be or remain on licensed premises has a degree of difficulty, given that the evidence was more in the nature of statements made by persons after they had been apprehended. On the other hand, it was clear that the duty manager on the night of 5 February 2006 should not have been able to reach such a level of intoxication, although there was no evidence that the licensee had allowed this state of affairs to happen. In our view, there was insufficient probative evidence of licensing misconduct by the partners to warrant the suspension of the licence.

[15] On the other hand there were a number of times when either there was no manager on duty, as required by s.115 of the Act, or alternatively, the nominated manager was not the holder of a General Manager’s Certificate. We regard such breaches as serious, particularly since Parliament has placed the responsibility of licensing compliance on the shoulders of properly trained and qualified managers.

[16] In this case, every sale made when a certificated manager was not present was unauthorised and illegal in terms of s.165 of the Act. Both the manager and the licensees could have faced penalties of up to $20,000. It is inevitable that there will be breaches of the Act, as well as liquor abuse, if the premises are not managed by people who have the necessary experience, and have been properly trained. Some of the things that happened in this case show precisely why Parliament enacted the legislation.

[17] In view of the way that the partners have responded to the application and dealt with the issues, we think they should be given an opportunity to see whether they can live up to the managerial standard which they have set. They should be under no illusion that any period of adjournment will effectively place the premises under the microscope. As pointed out by the Police Licensing Officer, the Alco-Link system will record and monitor the partnership’s progress. Any further breach of the above sections of the Act will almost inevitably lead to the suspension of the on-licence.

[18] In any application for the renewal of a General Manager’s Certificate, the first point of reference must be the criteria to be taken into account. Pursuant to s.126 of the Act we are required to have regard to the following matters when considering the application:

(a) The character and reputation of the applicant;

(b) Any convictions recorded against the applicant since the certificate was issued or last renewed:

(c) The manner in which the manager has managed the sale and supply of liquor pursuant to the licence with the aim of contributing to the reduction of liquor abuse:

(d) Any matters dealt with in any report made under s124 of this Act.

[19] As from 1 April 2006, we are now also governed by s.117A of the Act which prevents us or indeed any District Licensing Agency from renewing a General Manager’s Certificate unless the manager holds a Licence Controller Qualification. The file does not disclose whether Mr Bedford has completed the necessary test in order to obtain this further qualification, but the wording of the amendment is mandatory.

[20] It is clear that the manner in which Mr Bedford has managed the sale and supply of liquor pursuant to the licence with the aim of contributing to the reduction of liquor abuse, has been less than exemplary, as evidenced by the incidents reported on by the Police. On the other hand, we are not satisfied that his shortcomings warrant a refusal to renew the certificate. We propose to adopt the suggestion made by the Police Licensing Officer. In this way, Mr Bedford will be under no illusion that the grant of a General Manager’s Certificate as well as an on-licence is a privilege and not a right, and both carry with them corresponding responsibilities.

[21] Accordingly, the following orders are made.

• [a] Pursuant to s.132(7) of the Act, the application to suspend on-licence 023/ON/148/2001 issued to the partnership of Ian Elliot Bedford, Llynley Anne Bedford & Graham Edward Wilson is adjourned for nine months. This is to give the partnership an opportunity to remedy its failure to operate the licence in accordance with the Act. In particular we refer to the provisions of ss.25, 115, 165, 168, and 172A of the Act. If there are no further breaches of this nature over the next nine months, then the application will be deemed to have been withdrawn. On the other hand, the application may be reconsidered at a further public hearing if either of the applicants allege further breaches.
  
• [b] Subject to the production of a Licence Controller Qualification, the General Manager’s Certificate issued to Ian Elliot Bedford will be renewed for 15 months to 20 June 2007. If the Licence Controller Qualification is not produced to the District Licensing Agency within two months of the date of this decision, the application for renewal will be refused.
  

DATED at WELLINGTON this 31st day of May 2006

Judge E W Unwin Ms P A Ballard
Chairman Member

Bedford Rotorua.doc