Hall v Breakers Taranaki Limited and Burt [2007] NZLLA 356 (18 April 2007)

New Zealand Liquor Licensing Authority

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Hall v Breakers Taranaki Limited and Burt [2007] NZLLA 356 (18 April 2007)

Last Updated: 13 February 2010

Decision No. PH 356/2007 –
PH 357/2007

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 of on-licence number 033/ON/192/2005 issued to BREAKERS TARANAKI LIMITED in respect of premises situated at 162 Devon Street East, New Plymouth, known as “Breakers Café & Bar”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager’s Certificate number 033/GM/842/2006 issued to CAMERON STUART BURT

BETWEEN TONIA ANNE HALL

(New Plymouth District Licensing Agency Inspector)

Applicant

AND BREAKERS TARANAKI LIMITED

First Respondent

AND CAMERON STUART BURT

Second Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at NEW PLYMOUTH on 10 April 2007

APPEARANCES

Mr M E Clearwater - District Licensing Agency Inspector – applicant
Miss K Pascoe – for both respondents
Senior Sergeant S L Wansborough – NZ Police – to assist

ORAL DECISION OF THE AUTHORITY

[1] There are two applications before the Authority. The first application is for the suspension of an on-licence issued to a company known as Breakers Taranaki Limited in respect of premises situated in New Plymouth known as “Breakers Café and Bar”.

[2] The application was brought on the grounds that the licensed premises had been conducted in breach of s.155 of the Act. This section makes it an offence for any manager, licensee or employee to sell liquor to a person under the age of 18 years.

[3] The second application is related and is for the suspension of a General Manager’s Certificate issued to Cameron Stuart Burt. The ground for the application is that Mr Burt failed to conduct licensed premises in a proper manner. It was alleged that Mr Burt was the duty manager at the time when liquor was sold to a volunteer.

[4] The evidence shows that on Friday night, 13 October last, the Police and the New Plymouth District Licensing Agency ran a joint controlled purchase operation. Two volunteers were used. One was a young man named Ben who was 17 years and seven months at the time of the operation. The second volunteer was known as Sophie and at the time of the operation was about to turn 17 in four days’ time.

[5] Both volunteers were well briefed. They were told that they were not required to persuade anybody to make a sale to them. They were not to try and appear older or more sophisticated than they were, and they were not to involve themselves in conversation with any seller, nor wear makeup or dress in a style that made them appear older.

[6] At about 11.00 pm on Friday night, 13 October last, the two volunteers went into licensed premises known as “Breakers Bar” in Devon Street in New Plymouth. They were greeted by the duty manager Mr Burt who was the nephew of the Mr D D Burt principle director of the licensee and was aged just 21. They were seated at a table.

[7] The premises themselves are basically a café/restaurant with a bar to which casual drinkers can access. There is also a separate public bar known as “Rosie O’Grady’s Bar”.

[8] One of the volunteers, ‘Sophie’, approached the bar and ordered a beer and an RTD drink. The bar did not sell the latter type of drink and she ordered a Smirnoff ice, and took the drinks back to where she was seated. The cost of the two drinks was approximately $12. She and the other volunteer drank some of the liquor before a sample was taken.

[9] No attempt was made to question ‘Sophie’ when she approached the bar or to ask for identification. The person who sold her the drink was an American teenager who had been working on the premises for about two months. Mr Cameron Stuart Burt was the duty manager. He did not ask for age or identification either.

[10] On the other hand, as Ms Pascoe has pointed out, the area in question is undesignated. This has been done deliberately to enable young persons and minors who are not accompanied by their parents or guardian to use the dining facilities. As has been pointed out the lack of designation means that there will be young persons on the premises who can legally be present. On the other hand such a situation will require more focusing and more managerial responsibility to ensure that any minors who are present do not access the bar itself.

[11] This has proved to be the case. Mr Burt was contacted later. He had been working that evening but had finished and left his nephew in charge. He had checked the security video and noted that it was his nephew who welcomed the two volunteers. Of course at that time there was no illegality about their presence.

[12] The barperson has since left to continue with her travels around New Zealand, and she accepted that it was her responsibility. She knew the policy was that persons should be checked who were under 25 years and she had failed to do so. There was also some responsibility on the duty manager who had an opportunity to assess the two patrons, and perhaps issue a warning to the bar staff.

[13] Ms Pascoe has appeared for the company and for Mr Burt the duty manager. She made submissions. She asked that if we decided to exercise our jurisdiction to suspend the licence, that we take into account that the suspension of the licence would mean that the separate public bar known as “Rosie O’Grady’s Bar” would also have to close.

[14] She felt that this made a difference in terms of impact and should be taken into account. She also stressed that neither the company nor Mr Burt senior had been in any trouble so far as compliance issues were concerned. It was generally accepted that this premises is one of the better run premises in the New Plymouth CBD, a fact which was confirmed by the Senior Sergeant who holds the liquor licensing portfolio.

[15] Ms Pascoe pointed out that the company had succeeded in other operations aimed at testing the willingness of licensed premises to sell liquor to minors. She said that steps had been taken following the incident to ensure that there was a staff meeting a ‘buddy system’ had been implemented. Further, that disciplinary powers were now put into employment agreements and that the company was now assessing whether or not to install software warning members of the staff about potential sales to minors.

[16] After consideration we believe it is desirable to make orders. It is clear that in this case there was a breach of s.155 of the Act, and indeed no dispute was taken by Ms Pascoe about the facts. We have taken (as best we can), all other matters into account. We believe that suspension orders will assist in reducing liquor abuse generally, partly because any sale to minors has the potential for liquor abuse, and partly because the orders themselves will recognise the efforts made by the many premises which decline to make sales to the minors.

[17] For the record it should be noted that there were a total of 26 premises which were tested. Fifteen of these premises were off-licences and there was 100% success rate in terms of refusing to make a sale. Eleven on-licensed premises were tested and six of those premises also refused to sell liquor to the volunteers.

[18] In the circumstances we propose to suspend the General Manager’s Certificate issued to Cameron Stuart Burt for a period of three weeks commencing on Monday, 14 May 2007. The on-licence issued to Breakers Taranaki Limited will be suspended for 24 hours commencing at 7.00 am on Wednesday, 16 May 2007.

DATED at WELLINGTON this 18th day of April 2007

Judge E W Unwin Ms P A Ballard
Chairman Member

Breakers Café.doc(aw)