McGrogan and Singer v Impulse Opportunities Limited [2007] NZLLA 152 (28 February 2007)

Last Updated: 22 February 2010

Decision No. PH 152/2007 –
PH 153/2007

IN THE MATTER of the Sale of Liquor Act 1989

IN THE MATTER of applications pursuant to s.132 of the Act for the suspension of on-licence number 020/ON/122/2004 issued to IMPULSE OPPORTUNITIES LIMITED in respect of premises situated at 29 Tongariro Street, Taupo, known as “Finn MacCuhals Irish Pub”

BETWEEN JAMES McGROGAN
(Police Officer of Taupo)

AND GRANT ALLAN SINGER

(Taupo District Licensing Agency Inspector)

Applicants

AND IMPULSE OPPORTUNITIES LIMITED

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at TAUPO on 13 February 2007

APPEARANCES

Sergeant J McGrogan – NZ Police - applicant
Mr G A Singer – Taupo District Licensing Agency Inspector – applicant
Mr G S McKay – agent for respondent

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Impulse Opportunities Limited has held an on-licence for premises in Taupo known as “Finn MacCuhals Irish Pub” since 2003. A temporary authority was issued to a new partnership of Finns Trustees Limited and 3rd Impulse Limited, in December 2006. Mr Thomas Earl Condon is a director of Impulse Opportunities Limited and is also involved with the new partnership. He has been engaged in the hospitality industry for a number of years. The business trades as a tavern with authorised hours of 7.00 am to 3.00 am the following day seven days a week.

[2] These enforcement applications were brought by the Police and the District Licensing Agency Inspector. The applications relate to a controlled purchase operation carried out in Taupo on Friday 22 September 2006. The operation was conducted by the Police in conjunction with the Taupo District Licensing Agency. A total of four on-licensed premises were tested to see whether they would be prepared to sell liquor to a minor, without checking for identification. The minor successfully managed to purchase liquor at all four premises. One of them was “Finn MacCuhals Irish Pub”.

[3] The applications to suspend the on-licence were identical and were based on the ground that the licensed premises had been conducted in breach of s. 155 of the Act. Section 155 creates an offence for any licensee or manager or other person to sell or supply liquor to any person under the age of 18. The second ground was that the licensed premises had been conducted in breach of Condition (h) of the licence. That condition requires the licensee to ensure that the provisions of the Act relating to the sale of liquor to minors and intoxicated persons are observed.

[4] In this case the respondent company fully accepted that a minor had been served. We were asked to take into account the company’s good management record, its initiative in keeping the Police advised of false identifications being presented at the bar, and the disciplinary action taken against the employee. Mr McKay urged us to adjourn the application under s.132(7) of the Act.

[5] We heard submissions from the two applicants as well as evidence from Constable C A Wellwood and the volunteer. Sergeant McGrogan contended that the Taupo Police continued to be concerned that youths were either committing crimes or becoming victims while under the influence of liquor. He argued that such behaviour had a detrimental impact on the community, and that the Police often received information that young people were allowed to enter licensed premises. He stated that because of this intelligence, controlled purchase operations were conducted regularly by the Police and District Licensing Agency and, if sales were made, appropriate action was taken. The District Licensing Agency Inspector advised us that in an earlier operation in December 2005, a sale had been made and a warning issued.

[6] The volunteer was born on 27 January 1989 and was aged 17 years and eight months at the time of the purchase. At about 8.40 pm on Friday 22 September 2006 she entered the premises known as “Finn MacCuhals Irish Pub”. She was accompanied by a female Police officer who was there to observe what happened and act in a protective capacity. The volunteer approached the bar and asked for a “Pulse” which is a $7 can of vodka and soda. She was served by a reasonably mature member of staff.

[7] Mr T E Condon was not on the premises at the time but he has since spoken with the duty manager. He said that the duty manager was aware that the controlled purchase operation was taking place as advice to this effect had been received by another bar. All staff were instructed to be particularly vigilant. Despite this warning a member of staff made the sale. Mr Condon advised that the person was asked to attend a disciplinary meeting in accordance with his employment contract, and asked to explain his actions. He said that he had suffered from a lapse in concentration. He apologised for his actions and was given a “final written warning”.

[8] Mr Condon brought along five members of his staff (including the person who made the sale) so they might observe at first hand the potential consequences of a failure to check for identification. He produced eight licensed premises visit forms showing that the Police had visited the premises and were satisfied with the standard of management.

[9] Mr Condon explained at some length the initiative he had undertaken to hand out lifetime bans to underage drinkers caught using a fake identification. He believed that youngsters treated the law as something to be evaded, and they used any subterfuge to get inside the premises. He produced six drivers’ licences which had either been altered or borrowed. These were to be handed to the Police. It is clear that Mr Condon and his staff were anxious to set an example and were very proactive in dealing with any attempt to use a false or borrowed identification. He further explained that ID’s are checked at the door by the security staff. However it seems that the security people come on duty from about 11.30 pm, which is about the time that the patrons start to arrive. We note that the incident occurred much earlier.

Authority’s Decision and Reasons

[10] In this case it is clear that the ground for suspending the licence has been established. On 22 September last, the premises known as the “Finn MacCuhals Irish Pub”, were conducted in breach of s.155 of the Act. It is less clear that the licensee had failed to ensure that the provisions of the Act about selling to minors were being observed. It seemed to us that the sale was solely an employee fault. If the purpose of enforcement actions is to help maintain the integrity and effectiveness of the licensing system, the issue is whether the imposition of a suspension order will help to do so.

[11] The case took an unusual turn when the Sergeant made his final submissions. He was clearly impressed with the way that false identifications were being dealt with. It seems that there is a considerable co-operation on this issue between the management of the licensed premises and the Police. In fact the Sergeant said that of all the licensed premises in the Taupo CBD, these premises are the most robust when checking for identification as evidenced by the large number of drivers’ licences that had been seized. The presence of the members of staff at the hearing may also have had an impact. Sergeant McGrogan stated that in his view “Finn MacCuhals Irish Pub” was generally a well-run establishment. He concluded by stating that the Police supported an adjournment of the application. The Inspector maintained a neutral stance.

[12] Deciding whether it is desirable to make a suspension order involves the exercise of a discretion. On the evidence before us it is likely that a short period of suspension would have been ordered. However, we would be slow to ignore the advice and recommendation of an experienced local Sergeant who has appeared a number of times before us, and has shown an impressive understanding of the problems of teenage liquor abuse in the Taupo District. In those circumstances we have decided to adopt the request from Mr McKay supported by Sergeant McGrogan. It may well be that with the change in ownership this is the only practical course to adopt.

[13] For those reasons, we propose to adjourn these applications for nine months. This is to enable the respondent company (and the new partnership) to have the opportunity to remedy its systems and management, as they apply to the sale and supply of liquor to minors, as well as the presence of minors on the premises. If there are no reported incidents over this period of time then the application will be deemed to be resolved. If further incidents are reported, the public hearing will be resumed and suspension orders will be considered.

DATED at WELLINGTON this 28th day of February 2007

Judge E W Unwin Ms P A Ballard
Chairman Member

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