Pitcaithly v Rosehill Properties Limited and Unka [2007] NZLLA 1311 (17 December 2007)

Last Updated: 29 January 2012

Decision No. PH 1311–1313/2007

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 or cancellation of on-licence number 069/ON/44/2005 issued to ROSEHILL PROPERTIES LIMITED in respect of premises situated at 71 Frederick Street, Dunedin, known as the “Bowling Green Hotel”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager’s Certificate number GM 069/2006 issued to ALEESHA DHALMARI UNKA

BETWEEN WAYNE DENNIS PITCAITHLY (Police Officer of Dunedin)

Applicant

AND ROSEHILL PROPERTIES LIMITED

First Respondent

AND ALEESHA DHALMARI UNKA

Second Respondent

AND

IN THE MATTER of an application by ANTHONY MARK DIXON pursuant to s.118 of the Act for a General Manager’s Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Dr J Horn

HEARING at DUNEDIN on 21 November 2007

APPEARANCES
Sergeant W D Pitcaithly – NZ Police – applicant and in opposition to application for manager’s certificate
Mrs M Taylor – for respondents and Mr A M Dixon
Mr A S Mole – Dunedin District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] There are effectively three applications for consideration by the Authority. Sergeant Wayne David Pitcaithly is the Liquor Licensing Officer for the Dunedin Police. He is the applicant in the two enforcement applications that were filed with the Authority on 24 October 2007. In the first application, the Police seek the suspension or cancellation of the on-licence issued to Rosehill Properties Limited, (the company).

[2] The premises are situated at Frederick Street in Dunedin, and the business trades under the name of the “Bowling Green Hotel”. Mr Mark Paul Deason is the company’s General Manager as well as being a director and shareholder. His family has owned and operated the business since 1998. The tavern style on-licence permits trading hours between 11.00 am and 3.00 am the following day Monday to Saturday. On Sunday the authorised trading hours are between 11.00 am and 10.00 pm.

[3] The application is based on the sole ground that the licensed premises have been conducted in breach of s.168 of the Act. Section 168 creates two types of offences in respect of licensees or managers. They may be subjected to a penalty of $4,000 if they (a), allow any intoxicated person to be or to remain on licensed premises, or (b), allow violent, quarrelsome, insulting, or disorderly conduct to take place on licensed premises. It is clear that the Police rely only on the offence of allowing intoxicated patrons to be or remain on licensed premises.

[4] It is a defence to this charge if the manager or licensee satisfies a District Court that as soon as they, (or any employee), became aware of the situation, reasonable steps were taken in respect of each person concerned, either to take that person to a place of safety on the premises, or to remove that person from the licensed premises.

[5] The particulars relied upon to support the application, refer to two separate incidents on Saturday 25 August 2007, and Friday 28 September 2007. On both occasions, it is alleged that during a Police visit to the premises, intoxicated patrons were found on the premises. On the first occasion two such patrons were found. On the second occasion, there was one patron who was said to be clearly intoxicated.

[6] The second enforcement application seeks to suspend the General Manager’s Certificate issued to Ms Aleesha Dhalmari Unka. It is alleged that on Saturday 25 August 2007, Ms Unka was the manager on duty, and therefore responsible for the premises’ compliance with the Act. The application alleges that Ms Unka failed to conduct the licensed premises in a proper manner because there was a breach of s.168 of the Act. Ms Unka was granted her General Manager’s Certificate on 5 September 2006.

[7] The third application is brought by Anthony Mark Dixon for a General Manager’s Certificate. Mr Dixon filed his application with the Dunedin District Licensing Agency on 7 September 2007. The application drew an adverse report from the Police. They alleged that Mr Dixon had been the temporary manager of the “Bowling Green Hotel” on Friday 28 September 2007, when an intoxicated patron was found on the premises. It was alleged that Mr Dixon had disputed the Police assessment of intoxication, and declined to remove the patron. In their report, the Police recommended that the application be determined by the Authority, so that an appropriate stand-down period could be determined before the application was granted.

[8] Mrs Taylor represented both respondents and Mr Dixon. She stated that there was a factual dispute about the allegations, and it would be necessary for the Authority to resolve the differences. She placed reliance on the statutory defence set out above. In other words she argued that as soon as the duty manager or an employee became aware that there were intoxicated patrons on the premises, reasonable steps were taken to remove them. Mrs Taylor accepted the briefs of evidence of Senior Sergeant Grindell, and Constables Tait and Ramsay, without the need for them to be present.

The Hearing

[9] The first incident occurred at about 1.00 am on Saturday 25 August 2007. Senior Sergeant Allan Grindell has been with the Police for over 30 years. He was the Liquor Licensing Officer for Dunedin in 1994. He was part of a Team Policing Unit that visited the “Bowling Green Hotel” that morning. He stood just inside the doors while other members of the team went towards a very busy bar.

[10] The Senior Sergeant looked to the left towards a stage area. About 10 paces away, he observed a male slumped in his seat at a table. He walked towards the table and noticed that the person was slumped backwards and appeared to be asleep. He then observed a second male slumped over his knees. There was a pool of vomit around this person’s feet. (In his notes he said the vomit was all over the floor). He saw no security about, and no members of staff. He referred the two patrons to Senior Sergeant Kelvin Charles Lloyd who was the Officer in Charge of the Unit.

[11] Senior Sergeant Lloyd has had 21 years of service with the Police. He held the Liquor Licensing portfolio when he was Sergeant at Balclutha. He has had considerable experience in identifying intoxicated patrons. He also observed the crowd from the main entrance. He noted that the dance floor and the bar were very busy. After being alerted by Senior Sergeant Grindell, he went to the table where the two young men were. He confirmed that the young man with vomit at his feet was unable to communicate, unable to stand unassisted, and unable to focus. (His notes showed that the patrons had ‘just’ vomited onto the carpet). He noted that there was a partly filled glass of beer in front of each youth.

[12] The Senior Sergeant woke the second male who also had trouble in communicating. He smelt of alcohol and wanted to go back to sleep. He had never seen two patrons so intoxicated. He could not see any security or members of staff so he went to the door staff and asked for the manager to meet him at a nearby side door. He was then approached by a member of the hotel’s security. He pointed out the patrons, and the security person agreed that they should be removed. At that stage further security arrived. They helped the two patrons to their feet, and began moving them to the exit. The Senior Sergeant subsequently spoke with Ms Unka the duty manager, and advised her that the incident would be reported.

[13] The second incident occurred at about 11.00 pm on Friday night 28 September 2007. Sergeant Melanie Joy Aitken was supervising a Police group who were carrying out licensing checks. She has had eight and a half years service with the Police. She noted that the bar was not very busy. As she stood near the exit observing, a male approached her. He was carrying a glass stubbie and staggering. (In her notes she stated that she thought then, that he was clearly intoxicated). The person spoke to her, but she could not understand him as he was slurring his words. His eyes were glazed and vacant looking. She asked this person for identification and was handed a driver licence. She tried to question the patron but was unable to make sense of what he said because he was slurring his words. He managed to say that he had been in the bar about 20 minutes.

[14] The Sergeant noted that Mr Anthony Mark Dixon the duty manager was standing close by listening to the interview. She told Mr Dixon that the patron was too intoxicated and should not remain in the hotel. He said that he did not agree and would not be removing him. He said that the Police could do so, but he did not think that the person was intoxicated. The Sergeant tried again to reason with Mr Dixon but was unsuccessful. She thought that compared with others in the hotel, the person was extremely intoxicated. She spoke with members of her staff and asked them to assess the patron’s state of intoxication. (In her notes she stated that she received confirmation of intoxication from Constable Rhys Willis Tait). Her staff then escorted the person out. Later, she observed the same person being refused entry at two other premises.

[15] Constable Tait had not been a Constable for very long, although he had worked in the hospitality industry for 15 years. He approached the Sergeant because he had noted that she was talking with an argumentative patron. As he approached, he formed the view that the patron was clearly intoxicated. He noted that the person was slurring his words and talking slowly. He was argumentative about his alleged state of sobriety. In the Constable’s opinion the patron was the most intoxicated patron present. The Constable heard Mr Dixon say that he did not think that the patron was drunk. (In his notes he recorded that Mr Dixon had stated that there was nothing wrong with the patron and he wasn’t that bad). He heard Mr Dixon say that he did not agree with the Sergeant’s assessment, and he would not be kicking him out. Constable Tait later saw the patron walk or stumble into a doorframe.

[16] Constable Samuel Ramsay has been with the Police for 12 months. He also confirmed that in his opinion the patron appeared to be extremely intoxicated in that his eyes were glazed over, he was slurring his words, he was unsteady on his feet, and was swaying from side to side. He also heard Mr Dixon say that he did not agree with the Sergeant’s assessment, and would not be kicking him out. Mr Dixon confirmed his opinion with Constable Ramsay. Mr Dixon signed the 101 report with the words "Don’t believe the male was intox.” Mr Dixon went further and told the Constable that his manager’s certificate was in the mail.

[17] Sergeant Pitcaithly wrote to Mr Deason on 24 September 2007 outlining a number of problems and concerns. One of the matters raised was the incident on 25 August. In his detailed reply, Mr Deason stated that he had witnessed a patron throwing up as the Police entered the premises. In his letter, he suggested that people might throw up for different reasons not associated with intoxication. He accepted that a patron was asleep, but argued that no member of the staff had had time to assess either person’s level of intoxication. On reflection we believe that the incident described by Mr Deason was not the incident that led to the Police finding the patron at the table.

[18] After letters had been exchanged, the Sergeant was made aware of the latest incident on 28 September. He called a meeting that included Mr Dixon and Mr Deason. At the meeting he quoted Sergeant Aitken’s comments to Mr Dixon. Mr Dixon replied that he denied that he had said that he would not be kicking the patron out. This denial was confirmed in the Sergeant’s notes. At the meeting Mr Dixon said he thought the patron was tiddly but not intoxicated.

[19] Ms Unka is 21 years old. She has worked at the “Bowling Green Hotel” on a part time basis for two and a half years. She confirmed that her General Manager’s Certificate had been recently renewed for three years. She said that all staff were aware of the need to be vigilant about intoxication as 24 August was the first night of the “Undies 500” weekend. She said that in order to deal with the anticipated crowd, they had employed eight security people with two on the front door, and six inside. In addition there were two senior bar supervisors as back up for the bartenders. There were also three floor tenders. She said that when the Police had arrived she welcomed them and then took the main group to the bar and dance floor.

[20] Ms Unka said that when she was told that two intoxicated persons had been found, she found it hard to believe given the trouble they had gone to. She said that she did not have the opportunity to assess the two individuals as they had been removed by the time she was told of the incident. She said that she was pleased that they had been removed swiftly.

[21] The premises keep excellent records. Ms Unka was able to produce the daily Door Entry Count Form for Friday 24 August 2007. The form showed that a very large number of patrons had attended the premises that evening and 18 patrons had been removed for intoxication. The in-house reports about the Police visit were reasonably low key, considering the patrons’ level of intoxication.

[22] Mr M P Deason confirmed that Ms Unka was one of his best managers. He said that he knew how upset she was that two patrons had been found to be intoxicated, particularly because there had been staff meetings to emphasise the need for vigilance.

[23] Mr Dixon is the holder of the Licence Controller Qualification. He is just 21 years of age and has worked on a part time basis for the “Bowling Green Hotel” for the past two years and nine months. He had been appointed as a temporary manager and was working in this capacity on the night of 28 September last. Mr Dixon repeated his belief that the patron in question was not intoxicated. He believed that he was intimidated. He even went as far as to say that this might make the patron slur his words. Mr Dixon repeated his denial that he had declined to have the person removed. He stated that as a mark of respect he contacted the security supervisor by radio to ask that the patron be removed when the officer had finished talking with him.

[24] Mr Dixon stated that he had checked with bar staff. According to them, the patron in question had not been served while he was in the premises, although his friends had been. Mr Dixon’s comments were partly supported by Pavel Victor Coggins who works part time as part of the security team. Mr Coggins had removed a patron for bad behaviour when he received a call from the head of security to remove the patron in question. He submitted that he had walked the patron out at the same time as the Police. He also maintained that the patron was sober. His report did not include any specific comments, apart from the fact that the “cops had issues with one patron”.

[25] Mr Deason gave evidence that he believed that Mr Dixon had the makings of a very good manager. He said that Mr Dixon had changed his mind about the patron out of respect for the Sergeant and her position. This is in direct contrast with Mr Dixon’s own report which shows little sign of any respect and reads as follows:

“Police came in @ 11 and 1.30. @ 11 there was a guy that got in the face of the police. I completely denied he was intox, only arrogant. Police wrote a report saying he was “extremely intox” . I refused to sign it and wrote on it I don’t believe he was.”

The Authority’s Decision and Reasons

[26] Although all three applications were heard together, they must be looked at separately. Sections 132 and 135 of the Act require a two step approach. First the evidence must be examined to see whether we are satisfied that the allegations have been established. If we are so satisfied, we must then decide whether it is desirable that enforcement order are made.

[27] We deal initially with the first incident. There is no question but that the two patrons were intoxicated. We accept that there may be times when people will fall asleep and or vomit for reasons not associated with liquor. However, the evidence in this case is uncontested. One of the patrons was unable to stand, unable to communicate and unable to focus. The other couldn’t communicate, smelt of alcohol, and wanted to go back to sleep. Both had partly drunk glasses of beer in front of them.

[28] Although there is no definition of intoxication, and although the test is subjective, most people with common sense will know when a person is intoxicated. It is when they demonstrate an obvious disturbance or impairment of their mental or bodily faculties or functions. In this case the issue is when the two people became demonstrably intoxicated. When did one of them fall asleep and the other vomit? Was it about the same time as the Police first observed them, or had they been in that condition before the Police arrived?

[29] The Police argument is that the patrons were there to be seen. After all, the Police observed them as soon as they arrived. While it may be a coincidence that one patron fell asleep moments before the Police arrived, it seems to us to stretch credibility for two patrons to exhibit signs of intoxication at the same time.

[30] The Act provides that patrons must be demonstrably intoxicated before the licensee is required to remove them, or take them to a place of safety. The offence happens if the manager or licensee allows the intoxicated person to be or remain. The issue is whether these two men were allowed to get to that stage while they were on the premises. Did the members of staff observe them in that condition and ignore them? Did the staff lose focus and fail to keep observations? In this case the licensee had contracted more staff than usual to monitor the patrons. How were these two missed? The general expectation is that licensees and managers and their staff will monitor their patrons well before they get to that level of intoxication.

[31] We believe that there was sufficient evidence to enable us to draw the inference that the two patrons should have been visible to members of the staff prior to the Police arriving. While we accept that there was a management team that was proactive and not disinterested, both patrons were away from the bar and away from the dance floor, where it is assumed that most of the staff were concentrated.

[32] The only reasonable inference from the facts is that the intoxication of the two patrons was apparent, and yet nothing was done. The breach while not proved to be blatant, was one of omission. It was through negligence that these two intoxicated patrons were allowed to remain on the premises. We accept that as soon as the Police drew the status of the patrons to the attention of an employee, reasonable steps were taken to remove them. However, we believe there was a time prior to the Police arrival, when reasonable steps were not taken.

[33] In the incident involving Mr Dixon, we are more than satisfied that the patron was intoxicated. We rely on the evidence of the three Police Officers, two of whose briefs were accepted without the need to cross-examine. According to their evidence, this was a person who staggered, slurred his words, had glazed eyes and a vacant look, and who was not making sense. Three Police Officers formed the view that he was intoxicated and confirmed their findings with note book entries. All three confirmed that Mr Dixon had stated that he did not accept the assessment and would not be kicking the patron out.

[34] We regret to say that after Mr Dixon continued to assert that the man was not drunk, we lost confidence in his ability to make rational decisions. We also noted that he had told one officer that his General Manager’s Certificate was in the mail. At a subsequent meeting, he denied telling the Sergeant that he would not remove the patron. The evidence was overwhelmingly to the contrary. We do not accept that out of respect for the officer, he made arrangements for the removal of the patron. We believe Mr Dixon’s attitude to the Police was summed up in the note he made in his report.

[35] Other aspects of the evidence have led us to the view that this was a person who had been noticed by the staff. After all they had apparently denied the person service while continuing to serve his friends. We do not accept that Mr Dixon reached the threshold necessary to have the advantage of the statutory defence. In summary, reasonable steps were not taken to have the individual removed even when the status of the patron was drawn to Mr Dixon’s attention.

[36] In our view the incident reflects little credit on Mr Dixon. In such circumstances we have no confidence that Mr Dixon will respect the conditions of the licence or the provisions of the Act. After all, the Act is underpinned by the philosophy of reducing liquor abuse. Mr Dixon is asking us to give him the responsibility of deciding who may stay, and who should be asked to leave.

[37] For Mr Dixon’s benefit we set out in full, s. 4 of the Act. This reads:

The object of this Act is to establish a reasonable system of control over the sale and supply of liquor to the public with the aim of contributing to the reduction of liquor abuse as far as that can be achieved by legislative means.

The Licensing Authority, every District Licensing Agency, and any Court hearing any appeal against any decision of the Licensing Authority, shall exercise its jurisdiction, powers and discretions under this Act in the manner that is most likely to promote the object of the Act.

[38] In any application for a General Manager’s Certificate the applicant carries the onus of establishing the criteria set out in s.121 of the Act. In this case the sole issue is Mr Dixon's suitability. Mr Dixon has failed to discharge that onus. The Act has been amended in order to raise the standards of those charged with the responsibility of supplying liquor to the public. Part of this drive was the provision of the new Licence Controller Qualification. Current expectations are that the management of licensed premises will be conducted only by persons of integrity, committed to supervising the responsible service of liquor, and concerned to give meaning to the term ‘host responsibility’. The ultimate aim is to achieve the Act’s objective of reducing the incidence of liquor abuse.

[39] Although D J Enterprises Limited LLA 531 – 532/97 was decided prior to the amendments, what was said then is an accurate summary of current expectations.

“The guiding hand or hands on operator of any company or the potential holder of General Manager's Certificates now receive greater scrutiny from both the Police and other reporting agencies. Character and reputation are closely examined. The law and human desires of patrons frequently take different directions. The Police cannot be everywhere. Little but a licensee's or manager's character and suitability may stand between upholding the law and turning a blind eye. Self-imposed standards in accordance with the law must be set by licensee's and holders of General Manager's Certificates to control and manage licensed premises”.

[40] In the High Court in Re Sheard [1996] 1 NZLR 751 Holland J stated:

“Suitability is a word commonly used in the English language and is well understood. In an earlier decision the Authority has adopted the definition in the Concise Oxford Dictionary as ‘well fitted for the purpose; appropriate’.

Obviously the applicant’s past conduct will be very relevant to the consideration of suitability. The real issue is whether the evidence of that past conduct will indicate a lack of confidence that the applicant will properly carry out the obligations of a licensee. He has already been punished for his offending.”

[41] In many cases, we have asked the simple question. Are we confident that the applicant will uphold the law? In this case the answer must be, not at this time. Mr Dixon needs to gain a new understanding of what intoxication means. He may need to re-examine his attitude to the Police before he can assume the sole responsibility of managing licensed premises, particularly premises as busy as the “Bowling Green Hotel”. We were originally asked to nominate a period following which Mr Dixon might be able to display greater maturity. We suggest 18 months from the date the incident happened.

[42] We believe that it is desirable to make suspension orders in respect of the on-licence because the premises have been found to be conducted in breach of s.168 of the Act. There was a previous time in 2005 when we found that the same premises had been conducted in breach of s.168 of the Act. On that occasion the matter was adjourned for six months, although there was also a breach of s.154A of the Act. At any event the licensee has received a warning. See Martin Hepburn v Rosehill Properties Limited LLA PH 776-778/2005.

[43] We believe that breaches of s.168 of the Act are serious because of the connection between the behaviour and the object of the Act. On the other hand we have taken into account that the first breach resulted from circumstantial evidence. We have also taken into account the fact that there may not have been an adverse ruling if Mr Dixon had co-operated straight away, and not been so obstinate. There can be no suggestion of cancellation.

[44] We also believe that a nominal suspension of the General Manager’s Certificate is desirable, both as a message to Ms Unka and the holders of other General Managers’ Certificates. They carry the responsibility of ensuring that the premises comply with the Act. If there are licensing breaches, then there would have to be unusual circumstances for there not to be a sanction against the manager.

[45] Accordingly, the following orders are made.

[a] On-licence number 069/ON/44/2005, issued to Rosehill Properties Limited, is suspended for two days from 11.00 am on Tuesday 12 February 2008 to 11.00 am on Thursday 14 February 2008.

[b] The General Manager’s Certificate issued to Aleesha Dhalmari Unka is suspended for 10 days from Sunday 10 February 2008.

[c] The application by Anthony Mark Dixon for a General Manager’s Certificate is refused.

DATED at WELLINGTON this 17th day of December 2007

Judge E W Unwin
Chairman

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