Sloan and Carr v Grimben Limited [2007] NZLLA 319 (5 April 2007)

Last Updated: 18 March 2010

Decision No. PH 319-322/2007

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of applications pursuant to s.132 of the Act for suspension or cancellation of on-licence number 030/ON/12/05 issued to GRIMBEN LIMITED in respect of premises situated at 146 Hastings Street, Napier, known as “The Rack and Ruin”

BETWEEN ANDREW CHARLES SLOAN

(Police Officer of Napier)

AND AUDREY MERLE CARR

(Napier District Licensing Agency Inspector)

Applicants

AND GRIMBEN LIMITED

Respondent

AND

IN THE MATTER of an application by GRIMBEN LIMITED pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at 146 Hastings Street, Napier, known as “The Rack and Ruin”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at NAPIER on 27 March 2007

APPEARANCES

Senior Sergeant A C Sloan – NZ Police – applicant and in opposition to application for renewal of on-licence
Mrs A M Carr – Napier District Licensing Agency Inspector – applicant and in opposition to application for renewal of on-licence
No appearance by or on behalf of Grimben Limited

ORAL DECISION OF THE AUTHORITY

[1] There are four applications to be dealt with by the Authority.

[2] The first application is brought by Grimben Limited and is for the renewal of an on-licence in respect of premises situated in Hastings Street, Napier known as “The Rack and Ruin”.

[3] There are three related enforcement applications concerning the same premises. Two of the applications are brought by the Police. They are for the suspension and/or cancellation of the on-licence.

[4] The first application was filed in August last year and related to a large number of incidents which were alleged to have occurred between December 2005 and August 2006.

[5] A second application was filed in January of this year, and related to further incidents which had occurred after the first application had been filed.

[6] The third application is brought by the District Licensing Agency Inspector. It was filed in January 2007. It is for the cancellation of the on-licence and refers to breaches of ss.115, 130 and 165 of the Act.

[7] Effectively we are here to preside over the last rites being administered in respect of the licensed premises known as “The Rack and Ruin” which were formerly known as “Odins”. We suspect that the fact that there will no longer be licensed premises on this site will be welcomed by the reporting agencies.

[8] We propose to deal with this matter by considering the renewal application first.

[9] The licence was originally granted to Matlows LVP Limited. The directors and shareholders of the company were Vaughan Peter Bowkett and Julian Hunter Wiltshire. The licence was issued on 5 May 2005 and allowed trading between 7.30 am and 3.00 am the following day seven days a week. The application is effectively the first application for the renewal of the licence following the company’s probationary year. However, certain matters occurred during this period of time.

[10] The first was the fact that on 30 January 2006, we found that Mr Bowkett was unsuitable to be involved either with an on-licence, or as the holder of a General Manager’s Certificate. An oral decision under LLA PH 35-36/2006 in the name of Andrew Charles Sloan v Taite Tait and Associates Limited & Anor explains the Authority’s position. From then on Mr Bowkett was clearly not a person who should have been involved in the industry. One of the Inspector’s complaints is that it took Mr Wiltshire some five months to bring the Authority’s concerns into effect and sever Mr Bowkett’s involvement as a director and shareholder.

[11] The second matter is that on 1 December 2006, Mr Wiltshire sold the business to a person known as Benjamin Grimmett, a beneficiary. Mr Grimmett arranged for the name of the company to be changed to Grimben Limited (hereafter called the company) and became the sole director. The application for renewal of the on-licence is effectively in the company’s name. It is the same licence that is the subject of the three enforcement applications.

[12] There was no appearance on behalf of Grimben Limited in relation either to the renewal or to the enforcement applications. We heard the evidence in the absence of the licensee. The evidence shows that during the period of time between January 2006 and December of that year, there were a number of persons appointed as acting managers who were not the holders of General Managers’ Certificates. Two of the people were found to be Natasha Grimmett and Benjamin Grimmett in December of 2006. Further unqualified managers were named as Ryan Thomson and Mr Lucky Salusi. These persons are clearly persons who are unlikely to become the holders of General Managers’ Certificates at that time. Indeed Mr Thomson was declined an application for a Club Manager’s Certificate at an earlier hearing of the Authority.

[13] We heard evidence from three members of the Safety Watch Patrol run by the Napier City Council that on three occasions in March 2006, and December 2006, a number of people were observed leaving the premises known as “The Rack and Ruin” carrying liquor.

[14] There was further evidence that on 9 December 2005, there was insufficient food available as required by the licence. At that time Mr Bowkett was present and claimed to be the owner. There was evidence the following night that Police attempted to visit the premises and found Mr Wiltshire to be unco-operative. He was subsequently charged with failing to provide proper information and was convicted. However, he was successful in appealing that decision in the High Court. Further occasions were noted of people leaving the premises with liquor. On 24 February 2006 at 4.30 am, 10 people were found drinking on the premises. Mr Wiltshire was in charge. He attempted to keep the Constable out of the building but was unsuccessful. Mr Wiltshire said that they were cleaners. The Constable said there was no evidence that any cleaning had been going on. One of the drinkers stated that he was a slow drinker and that he had been finishing his bottle since 3.00 am that day. Another had a fairly full bottle with him.

[15] On 20 August 2006, an undercover police officer was able to enter the premises from the Marine Parade entrance. An all-ages function was being organised by Mr Bowkett. There is a dispute between him and Mr Wiltshire as to where the lines of responsibility were. The undercover police officer had no difficulty in arranging for her friend to go through to the bar through the interior of the premises, and purchase two stubbies of Tui beer, and then bring them back so that they could not only consume them, but later leave the premises with the bottles. The evidence shows that there was very little security or professional managerial approach.

[16] Photographs have been produced which indicate that later in that month there may have been further problems with having young people on the premises being inadequately supervised. Mr Wiltshire placed the responsibility on Mr Bowkett.

[17] Senior Sergeant A C Sloan is the Police Liquor Licensing Officer for Napier. He met with Mr Wiltshire on 25 April of 2006 and explained to him quite carefully that in order to get the renewal of the licence he would have to ensure that Mr Bowkett was no longer involved. To be fair to Mr Wiltshire he has done that and deserves some commendation for doing so.

[18] From a property management point of view, the lease of the premises expired on 1 March 2007. We have been advised that the landlord has in fact taken the lease back. Accordingly, the company has no tenure at any event. Tenure is vitally important in any application for an on-licence, and by extension, for renewal.

[19] Senior Sergeant Sloan spoke with the sole director of Grimben Limited, and he advised the Senior Sergeant on 8 January of this year, that he intended to close the business and remove the fittings. In summary, there is no appearance, there is no tenure, and there is a history of breaches of the Act. There are established allegations of conduct showing a lack of suitability. In all the circumstances, and given the criteria set out in s.22 of the Act, it is now appropriate that the application for renewal be refused.

[20] Having refused the application for renewal, there is no need to deal with the three enforcement applications which are rendered nugatory.

DATED at WELLINGTON this 5th day of April 2007

Judge E W Unwin Ms P A Ballard
Chairman Member

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