Sloan v Wiltshire [2007] NZLLA 329 (5 April 2007)

Last Updated: 19 March 2010

Decision No. PH 329/2007

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 the suspension or cancellation of General Manager’s Certificate number GM/30939/2000 issued to JULIAN HUNTER WILTSHIRE

BETWEEN ANDREW CHARLES SLOAN

(Police Officer of Napier)

Applicant

AND JULIAN HUNTER WILTSHIRE

Respondent

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
Mr J H Wiltshire - respondent
Mrs A M Carr – Napier District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Mr J H Wiltshire has held a General Manager’s Certificate since 29 December 2000. At that time he was the manager of “O’Flaherty’s Irish Pub” in Napier. Mr Wiltshire has been involved in the hospitality industry for nearly 25 years. He was appointed as the manager of licensed premises known as “Odins” when the previous manager left. Those premises had been the subject of previous complaints and appearances before us. See for example Youth Entertainment Trust Incorporated and J H Lovatt v D T Hannay LLA PH 266-269/2004. Mr Wiltshire had met another licence holder Mr V P Bowkett socially and they had worked together.

[2] Mr Wiltshire and Mr Bowkett combined to form a company to take over the business known as “Odins”. The company was called Matlows LVP Limited. The two men held an equal shareholding and were both directors. A new on-licence was issued on 5 May 2005 and allowed for trading between 7.30 am and 3.00 am the following day. The business was re-named as “The Rack and Ruin”. Mr Wiltshire took over the management of the business, while Mr Bowkett had another licensed business in Napier. In addition Mr Bowkett ran a number of unlicensed events at premises which backed on to “The Rack and Ruin” and which were known as the “Odeon”. The entrance to these premises was from Marine Parade.

[3] On 30 January 2006, we found that Mr Bowkett was unsuitable to be either the holder of a licence, or a General Manager’s Certificate. See decision A C Sloan v Taite Tait and Associates Limited and another LLA PH 35-36/2006. It took Mr Wiltshire some time to take over the company and remove Mr Bowkett as a director and shareholder. The legal requirements were completed on 5 July 2006. From that time, Mr Wiltshire was the company’s sole director and shareholder. The company leased the entire site including the unlicensed area known as the “Odeon.” During the latter part of 2006, Mr Wiltshire was forced to trespass Mr Bowkett from the property.

[4] On 18 October 2006, the Authority received this application for the suspension or cancellation of Mr Wiltshire’s General Manager’s Certificate. The grounds for the application were that Mr Wiltshire had failed to conduct licensed premises in a proper manner, and that his conduct had been such as to show that he was not suitable to hold the certificate. The allegations in support of the grounds, consisted of a 13 page summary of incidents and events at “The Rack and Ruin” between 2 December 2005 and 20 August 2006. A similar document had been used to support an enforcement application against the company which held the on-licence.

[5] On 1 December 2006, Mr Wiltshire sold the business to Mr B Grimmett. A change in the company name and shareholding was duly recorded. Mr Grimmett eventually closed the business in late December 2006. On 27 March 2007 at a public hearing we declined to renew the licence for “The Rack and Ruin”. See Grimben Limited and A C Sloan and another v Grimben Limited LLA PH 319-322/2007.

[6] Mr Wiltshire accepted that as the manager of the premises he was responsible for all compliance issues. He argued however, that on some occasions he was not present, and the business was being operated by temporary managers who had been properly appointed. He contended that the any incidents that had happened after 1 December 2006 were the responsibility of the new owner. He submitted that the facts did not warrant the cancellation of the certificate.

The Hearing

[7] The evidence showed that on 2 December 2005 a Mr L Sulusi was the acting manager although his name was not displayed. Mr Sulusi is regarded as unsuitable to hold such responsibility. He has an extensive criminal history with links to the Mongrel Mob. On this occasion a 17-year old patron was found on the premises. Mr Wiltshire later explained that he had left the premises briefly to purchase a packet of cigarettes, and that Mr Sulusi had been appointed for less than 48 hours.

[8] On 9 December 2005, a qualified manager was on duty but his name was not displayed as required. No food was available as required by the on-licence. Both Mr Bowkett and Mr Wiltshire were spoken to.

[9] On 10 December 2005, a member of the Police tried to enter the premises from Marine Parade. Mr Wiltshire refused him entry saying that there was a private function taking place and the area was not covered by the licence for “The Rack and Ruin”. He was asked for a copy of the licence but declined to produce it. According to the Sergeant he was defiant and uncooperative. Mr Wiltshire was convicted by two Justices of the Peace of breaching s.175 of the Act. However, he appealed to the High Court. The appeal was allowed with the Judge commenting that there had been nothing unlawful or confrontational in Mr Wiltshire’s behaviour.

[10] Further evidence showed that on 27 January and 6 September 2006, Mr Ryan Thomson was the acting manager. On the second occasion, Mr Thomson’s name was not displayed. Mr Thomson was not a suitable person to have such a responsibility. However, Mr Wiltshire stated that Mr Thomson had been appointed for less than 48 hours on each occasion.

[11] On 24 February 2006 at 4.30am the Police conducted a licensing check of the premises known as “The Rack and Ruin.” On entering the premises they discovered 10 persons inside drinking. Some were congregated around the pool table. One patron stated that he was a slow drinker and was on the same bottle he had started at 3.00am. Mr Wiltshire stated that the people were either cleaning up or were employees. There was no sign of any cleaning equipment. Mr Wiltshire made no serious attempt to persuade us that the people were legitimately on the premises under s.170(2) of the Act, in that they were present either for the purposes of cleaning, or had ceased their employment one hour previously.

[12] On 1 April 2006, a male was found on Hastings Street with a half full bottle of Bourbon and Cola. He stated that he had purchased the bottle at “The Rack and Ruin”. A temporary manager was in change of the premises as Mr Wiltshire had gone out for more cigarettes. Similar incidents of patrons leaving the premises with liquor were reported on 10 March and 15 March 2006.

[13] Senior Sergeant A C Sloan is the Police Liquor Licensing Officer for the Napier area. On 25 April 2006 he held a meeting with Mr Wiltshire concerning the renewal of the licence. They discussed a number of issues about Mr Bowkett’s future involvement in the business and the use of temporary managers. Part of the agreement concerned staff training. The Senior Sergeant produced a letter dated 21 August 2006 written by the Mayor of Napier to the owner of the premises. The letter referred to complaints from neighbours, the public and tourists about the conduct of patrons using the premises, and the state of the entrances. The complaints included litter, intoxication, and undesirable patron behaviour in respect of both businesses. The activity was said to have escalated in recent months.

[14] On 20 August 2006, two undercover members of the Police entered the unlicensed premises from Marine Parade. An all-age concert was being promoted by Mr V Bowkett. One of the Constables was able to walk through to “The Rack and Ruin” and purchase liquor and then take it back to the concert. In other words, there was free access between the two venues. It appears from the photographs that were produced that the consequence of this lack of managerial control was to create a serious litter problem in the Marine Parade after similar functions. Mr Wiltshire placed the major culpability for this state of affairs on his former partner, Mr V P Bowkett although he accepted some responsibility. He said that he had trusted Mr Bowkett to organise better security.

The Authority’s Decision and Reasons

[15] Section 135 of the Act requires a two step approach. First the evidence must be examined to see whether we are satisfied that the allegations have been established. The section provides that we must be satisfied that Mr Wiltshire has failed to conduct licensed premises in a proper manner, or that his conduct has been such as to bring his suitability into question. Once that decision has been made we must then decide whether it is desirable to cancel the certificate or make a suspension order. If we decide that a suspension is warranted we are required to determine the length of such suspension.

[16] It is perfectly clear that during the 19 months that Mr Wiltshire managed “The Rack and Ruin” he failed to live up to the standards expected of the holder of a General Manager’s Certificate. He was entitled to appoint a temporary or acting manager for less than 48 hours but his choices showed a lack of appreciation of the standards required for such responsibility.

[17] Other incidents where the Act was breached included the lack of display of the names of the duty managers, the three occasions that patrons had been allowed to leave the premises carrying liquor, and the one occasion that a minor was found on the premises. On 24 February 2006 the premises were trading outside the authorised hours in breach of ss.165 and 171 of the Act. Finally, Mr Wiltshire must accept a level of responsibility for the ease with which patrons of the all-ages concert could access his bar and remove liquor to another venue.

[18] Mr Wiltshire managed to have his conviction overturned but his lack of co-operation with the Police brought his suitability into question. He needs to be reminded of the following comments in Deejay Enterprises Limited LLA 531/97 – 532/97.

‘The guiding hand or hands on operator of any company, or the potential holder of a General Manager’s Certificate, now receive greater scrutiny from both the Police and other reporting agencies. Character and reputation are closely examined. The law and human desires frequently tug in 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 licensees and holders of General Manager’s Certificates who control and manage licensed premises’.

[19] We believe that it is desirable in Mr Wiltshire’s case to impose a sanction short of cancellation. In our view the incidents, while reprehensible, do not warrant the extreme measure of cancelling the certificate, particularly taking into account the period of time when he was in charge. To impose such a penalty would be unreasonable in our view. On the other hand if managers let standards slip or act unprofessionally they must anticipate that there will be consequences.

[20] The expectation is that the management of licensed premises will be conducted only by persons of integrity, who are committed to supervising the sale and supply of liquor in a responsible way, and concerned to give meaning to the term, ‘host responsibility’. The issue for us is about keeping standards high.

[21] Accordingly, for the reasons we have given the General Manager’s Certificate issued to Julian Hunter Wiltshire will be suspended for three months from Monday 30 April 2007.

DATED at WELLINGTON this 5th day of April 2007

Judge E W Unwin Ms P A Ballard
Chairman Member

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