Campbell v Ball [2006] NZLLA 98 (20 February 2006)

Last Updated: 20 February 2010

Decision No. PH 98/2006

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 suspension of General Manager’s Certificate number 039/GM/15/2004 issued to NICHOLAS CHARLES BALL

BETWEEN MICHELLE LEE CAMPBELL

(Police Licensing Officer of Palmerston North)

Applicant

AND NICHOLAS CHARLES BALL

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

DECISION

We have before us an application by Michelle Lee Campbell, Police Licensing Officer of Palmerston North, for suspension of a General Manager’s Certificate held by Nicholas Charles Ball.

The grounds for the application are that the conduct of the manager is such as to show that he is not a suitable person to hold the certificate in terms of s.135(3)(b) of the Act.

More particularly it is alleged that without the licensee’s knowledge, Mr Ball displayed a sign outside the premises where he is employed, which was worded as follows: “Why study for exams when you can get drunk with your mates?”

Police contend that this statement can be interpreted as a promotion to encourage excessive consumption of alcohol in breach of s.154(A) of the Sale of Liquor Act 1989, which provides:

Every person commits an offence and is liable to a fine not exceeding $5,000 who, being a licensee or manager of licensed premises, does anything in the promotion of the business conducted on the premises, or in the promotion of any event or activity held or conducted on the premises, that is intended or likely to encourage persons on the licensed premises to consume alcohol to an excessive extent.

It may assist to include a brief synopsis of events, which led to an earlier s.135 application in relation to a manager’s certificate in the same premises, known as the “Fitz Bar”.

We were asked by Police in that application to adjudicate upon the suitability of Jared Bradley Wallace to continue to hold a General Manager’s Certificate. Mr Wallace had been the duty manager on an occasion when a game of “Bull Rush” had taken place in the bar, resulting in the injury and subsequent death of a patron. The game had been accompanied by consumption of a significant amount of liquor by the participants.

The incident engendered significant media publicity at the time, and in our decision PH 144/2005, following a hearing before us on 9 March 2005, we cancelled Mr Wallace’s certificate.

We adopted that course of action having commented at length on the duties and responsibilities of managers of licensed premises. Amongst other things we had compared the amount of liquor consumed by the group with the quantities set out in ALAC guidelines in relation to the number of standard drinks which a person would be able to consume before reaching a level of intoxication which would breach the excess breath/blood alcohol limits set out in the Transport Act 1962.

We concluded that Mr Wallace had allowed, if not actively encouraged the members of the group, to consume liquor to an excessive extent. We said that:

“There was no question [in our minds] that by the time the game of “Bull Rush” started, Mr Cranswick [the deceased] had reached a stage where he was quite incapable of driving safely. In those circumstances, Mr Wallace made a second serious error of judgement. He allowed, permitted, or condoned, the persons who had been drinking continuously, to play a physical game called “Bull Rush” on the premises.

We went on to say that we were satisfied that Mr Wallace’s conduct on the night in question was such as to show that he was no longer suitable to hold the certificate.

In the present instance there is no evidence that any person availed themselves of the invitation in the sign, which Mr Ball is said to have place outside the “Fitz Bar”.

Nevertheless, the invitation to consume liquor to excess was there, in writing, for all to see. Given the previous unfavourable publicity gained as a result of the earlier incident described above, we not only concur with the Police’ contention that Mr Ball has displayed attributes inconsistent with being a person that is fit and proper to manage licensed premises, we would go so far as to say that placement of the sign was totally irresponsible.

An invitation from a manager of licensed premises to “get drunk”, is in our view clearly in breach of s.154(A) of the Act, and we are satisfied that the grounds for the application have been established.

Mr Ball acknowledges that he has erred, and accepts that a period of suspension of his manager’s certificate is appropriate. Police have recommended that he be denied the privilege of executing his managerial duties under the certificate for a period of one month, a recommendation which the respondent is prepared to have imposed by the Authority without the requirement to appear before us at a public hearing.

Having considered the recommendation from the applicant, we are prepared to deal with the matter on the papers, and we now make the following order:

General Manager’s Certificate number 039/GM/15/2004, issued to Nicholas Charles Ball, is suspended for one month from Monday 13 March 2006.

DATED at WELLINGTON this 20th day of February 2006

______________________
B M Holmes
Deputy Secretary

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