Corner Bar De Bretts, re [2006] NZLLA 504 (12 July 2006)

Last Updated: 23 November 2010

Decision No. PH 504/2006

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 the suspension of on-licence number 007/ON/058/2006 issued to ROBOMARK ENTERPRISES LIMITED in respect of premises situated at 2-4 High Street, Auckland, known as “Corner Bar De Bretts”

BETWEEN TRACEY CATHERINE SARICH
(Police Officer of Auckland)

Applicant

AND ROBOMARK ENTERPRISES LIMITED

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at AUCKLAND on 4 July 2006

APPEARANCES

Senior Sergeant A J Miller – NZ Police – applicant
Mr R M Ryan – representing Robomark Enterprises Limited - respondent
Ms M J McLeod – Auckland District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This application has been brought by Tracey Catherine Sarich, a Police Officer of Auckland. On 25 May last, she applied for the suspension of the on-licence issued to Robomark Enterprises Limited (hereafter called the company), in respect of premises situated at 2-4 High Street in Auckland. These premises are known as “Corner Bar De Bretts.”

[2] The premises trade as a tavern with a 24-hour licence. The licence is subject to the usual condition:

“No liquor is to be sold or supplied on Good Friday, Easter Sunday, Christmas Day or before 1.00 pm on ANZAC Day to any person other than persons who are present on the premises for the purpose of dining.”

[3] There are two grounds for the application:

• [a] That the licensed premises have been conducted in breach of ss.165 and 171 of the Act. The first section makes it an offence for any licensee or manager to sell or supply liquor to any person at any time when the licensee is not authorised by the licence or the Act to sell to that person. Section 171 creates an offence for any manager or licensee to allow any person to be on licensed premises at any time when the premises are required to close for the sale of liquor.
  
• [b] That the licensed premises have been conducted in breach of the condition of the licence (referred to in paragraph (2) above), by trading during the morning of Good Friday 14 April 2006.
  

[4] Mr R M Ryan is the owner of the premises. He was celebrating his forthcoming marriage on the night in question. He submitted that while he and his friends were in the bar, no sales had been made, and members of the public were not present. He therefore argued that if the breaches were proved, it would be unfair to make any suspension order. He tentatively submitted that the Police had not established that the persons present in the bar were not employees. The issues before us are whether the allegations have been established, and if so, whether a suspension of the licence is appropriate.

The Factual Background

[5] Mr Ryan has been the owner of the bar for about two years. He stated that he is well aware of his responsibilities to the licensing laws and host responsibility. Mr Ryan was married on 22 April 2006. On Thursday 13 April 2006, he held his “stag do”. After some sporting activities in the afternoon, and a dinner that evening, the party arrived at “Corner Bar De Bretts”. According to Mr Ryan, this was to make use of the venue, including the glasses and the sound system.

[6] At about 1.40 am Mr Ryan was outside his premises on the intersection of Shortland and High Streets. His “boisterous” behaviour attracted the attention of a multi-agency team who were carrying out an audit of licensed premises. The night before Good Friday is an important night in the licensing calendar. There would be few licensees who would be unaware of the significance of the following day in terms of selling and supplying liquor. Unless people are lodgers or present for the purpose of dining, all taverns and hotels must stop selling liquor at midnight.

[7] Senior Sergeant A J Miller was in charge of the multi-agency team. Having seen Mr Ryan, and having heard music coming from the bar upstairs, he approached the premises. He noted that the main entry doors were closed and locked, but a large bay window next to the door was wide open. He identified himself and was able to enter the premises. He noted that there were about fifteen men present drinking from glasses and bottles. There were a number of used shot, spirit, and beer glasses on the bar, as well as a variety of bottles.

[8] Mr Ryan was spoken to and confirmed that no members of the public were present. He stated that his friends had supplied most of the liquor and he had brought in a bottle of tequila and scotch. He contended that no liquor had been sold.

[9] Senior Sergeant Miller’s evidence was supported Constable T C Sarich. She thought that Mr Ryan seemed to be apologetic. He acknowledged that he should have obtained a special licence for the occasion. She spoke with a Mr M J McRae who stated that he was the manager on duty, although a later search revealed that there had been no notification of his appointment under s.130 of the Act. He stated that it was a private function and as no members of the public were allowed entry, he thought that it would be all right.

[10] Ms M J McLeod is a Licensing Inspector with the Auckland District Licensing Agency. She obtained confirmation from a staff member that the premises had been closed to the public at midnight, and then re-opened for the ‘stag do’.

[11] Mr R M Ryan is the sole shareholder of Robomark Enterprises Limited. When he gave evidence, he was adamant that he and his friends were only using the premises as a venue. He contended that there was no evidence of any sales. As indicated above, he submitted that the police had not been able to show that the other people present were not within the exceptions provided in s.170 of the Act.

[12] While it is an offence to allow people on licensed premises when the premises are required to be closed, this does not apply to the licensee or manager or their partners, or members of their families. Nor does the restriction 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 of the visit, or who ceased working one hour previously.

[13] However, Mr Ryan supplied a letter from one of his friends who confirmed that he was a member of the group and had brought a bottle of Canadian Club whisky to the premises to share among the group. At the end of the hearing Mr Ryan apologised for what had happened and asked that we treat the incident as a one off mistake.

The Authority’s Decision and Reasons

[14] Because the business operates as a tavern, it is governed by s.14(2) of the Act.

It is a condition of every on-licence granted in respect of a hotel or tavern that no liquor is to be sold or supplied on Good Friday, Easter Sunday, Christmas Day, or before 1pm on Anzac Day to any person other than –

(a) Any person who is for the time being living on the premises, whether as a lodger or an employee of the holder, or otherwise; or

(b) Any person who is present on the premises for the purpose of dining.

[15] While we accept that there is no proof that liquor was sold to any of the guests, it was most certainly supplied. The fact that much of the liquor was brought by the guests does not assist Mr Ryan. The law is unequivocal. Liquor must not be sold or supplied on Good Friday, unless the recipients fall within the exceptions stated above. Furthermore, on that day, persons must not be allowed on licensed premises after mid-night on the Thursday. There may be a 30-minute drink up time, and as stated above, there are exceptions to the rule.

[16] However, it is our view that it is up to Mr Ryan to show that his guests fell within the exceptions, and not for the Police to show that they did not. We are in no doubt that on Friday morning 14 April at about 1.40 am, the licensed premises were being conducted in breach of ss.165 and 171 of the Act as well as in breach of the relevant condition of the licence.

[17] The issue is whether it is desirable to make a suspension order, and if so, the period of suspension.

[18] On the one hand, we accept that there were no members of the public present on the premises, that there was no evidence of intoxication or the presence of minors, and that this was a significant event in Mr Ryan’s life.

[19] On the other hand he breached a fundamental rule of the Act which should be well known to all licensees. The maximum penalty for a breach of ss.165 and/or 171 of the Act is $10,000. There are many licensees who would like to entertain their friends in their own premises after hours, but who recognise the law by obtaining a special licence. Without the protection of a special licence, an opportunity to evade the law becomes available. That is why we believe that such an incident cannot be ignored. Since the circumstances do not portray any attempt to make money while breaking the law, the period of suspension will be nominal.

[20] 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”.

[21] In this case, there was a breach in the company’s licensing standards. We believe that a suspension order will help to secure managerial compliance within the industry. For the reasons given, the on-licence number 007/ON/058/2006 will be suspended for twenty-four hours from 6.00am on Monday 14 August 2006.

DATED at WELLINGTON this 12th day of July 2006

Judge E W Unwin Ms P A Ballard
Chairman Member

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