Campbell v Oliver [2007] NZLLA 482 (21 May 2007)

Last Updated: 30 January 2010

Decision No.PH482/2007

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 010/006/2002 issued to LIANE MARIE OLIVER

BETWEEN GAVIN JAMES CAMPBELL

(Police Officer of Manukau City)

Applicant

AND LIANE MARIE OLIVER

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Members: Ms J Moorhead
Mr P M McHaffie

HEARING at AUCKLAND on 10 May 2007

APPEARANCES

Sergeant G J Campbell – NZ Police – applicant
Mr R H Bryant – agent for respondent
Mr T N Long – Franklin District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This decision deals with an application brought by the Police for the suspension or cancellation of a General Manager’s Certificate issued to Liane Marie Oliver. Mrs Oliver is one of the licensees of premises known as “Muddy Waters Irish Pub and Restaurant” situated at Mercer. She and her husband James Gerard Oliver, are the shareholders and directors of the company that holds the on and off-licences for the premises. Mrs Oliver has held a General Manager’s Certificate since 2002.

[2] The application was filed with the Authority on 23 March 2007. The ground for the application was that Mrs Oliver’s conduct had been such as to show that she is not a suitable person to hold the certificate. The allegations were that on two specific occasions Mrs Oliver had been aggressive, uncooperative and hostile to a Police Sergeant who was making licensing checks of the premises, and also that she verbally abused him using obscene language.

[3] Mrs Oliver did not specifically deny the allegations. She took the opportunity to apologise unreservedly to the Sergeant. Her evidence was that on the first occasion she was under medication. She confirmed her belief that there was a personality clash between her and the Sergeant. This was offered as a reason for her behaviour rather than an excuse.

The Hearing

[4] Sergeant G J Campbell is the Officer in Charge of the Counties Manukau District Licensing Unit. He assisted in the formation of a collective that includes the Counties Manukau Police, the Franklin District Licensing Agency and the Auckland Regional Public Health Service. Members of the collective carry out routine Alco-Link based monitoring of licensed premises as well as compliance visits.

[5] On 26 October 2005 Sergeant Campbell visited the “Muddy Waters Irish Pub and Restaurant”. He wanted to talk to management about an incident that had appeared on the Police Alco-Link data. He gave evidence that a Julie McDonald was the nominated duty manager. He asked to speak with her and was advised that she was not present. The member of staff offered to notify the owner that he was present. Mrs Oliver appeared from the rear of the premises in an agitated state. He asked who was on duty because the nominated duty manager was neither on duty nor on the premises. Mrs Oliver’s response was that she was the duty manager and that she had been at the hospital all day having injections. She then used an obscenity to add to her description of the Sergeant as being “insensitive”.

[6] The Sergeant attempted to say that he simply wanted to speak with the duty manager but the language was repeated. He issued a caution and then attempted to discuss the Alco-Link incident. However, Mrs Oliver was quite dismissive about the information and denied that the report related to her premises. Mrs Oliver produced a Patient Medical History report from Pukekohe Family Health Care confirming that she had been present on that day. She stated that she had been given two pain relief injections and had been prescribed a sleeping pill. She said she was feeling unwell and was having difficulty in even standing. In that case she was clearly unable to perform the duties expected of a manager on duty.

[7] On 17 March 2007 the Sergeant returned to the premises with a Liquor Licensing Officer for the Auckland Regional Public Health Service. The Liquor Enforcement Collective was checking on premises that were promoting St Patrick’s Day events. It was noticed that a few patrons were leaving the premises with open bottles and congregating on the grass reserve opposite the premises. There appeared to be no security people monitoring the entranceway. Mrs Oliver was nominated as the duty manager and the Sergeant asked to speak with her. Because of the loud noise, they went outside to speak.

[8] Sergeant Campbell spoke about the movement of people with drinks and the lack of security. Mrs Oliver quickly became aggressive and used a further obscenity to disparage the Sergeant. She refused to answer questions about numbers of staff working that night and also spoke rudely and offensively to the Health representative. It may well be that the representative was not formally introduced but that was not offered as a reason or an excuse for the behaviour. Mrs Oliver was again cautioned. However this did not stop her from using a further obscenity to describe the Sergeant to her husband. Mr Oliver acknowledged that there was a problem about patrons leaving the premises with liquor and said that it would be addressed.

[9] Mrs Oliver stated that she had become upset because the Sergeant had mispronounced her first name. She seemed to believe that this was done on purpose. She accepted that she had become flustered and lost her temper. Both she and her husband confirmed that this sort of behaviour was quite out of character for her. Mrs Oliver became so wound up by the confrontation, that she visited her doctor about 11 days later because of a migraine and related problems. She offered Sergeant Campbell her unreserved apology and said that she was quite ashamed about the way she had reacted and had resolved to keep calm in the future.

The Authority’s Decision and Reasons

[10] 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 if we are satisfied that Mrs Oliver’s conduct has been such as to show a lack of suitability we must decide whether it is desirable to cancel or suspend the certificate. In this case Mrs Oliver indicated that she accepted that some form of sanction was inevitable.

[11] It is clear to us that Mrs Oliver failed to live up to the standards expected of the holder of a General Manager’s Certificate on two occasions. Her attitude to the Sergeant was alarmingly hostile considering that he had a legitimate reason to be present on both occasions and was carrying out the sort of duties we expect of Liquor Licensing Officers.

[12] On the other hand Mrs Oliver must be given credit for having the necessary insight to bring about the apology, as well as the realisation that she needed to address the issue of her interaction with the Sergeant. As she explained, her conduct was not part of a reaction to the Police generally, but rather a personal response to a perceived form of over enthusiastic monitoring of the business or her personally. It should be noted that there were no liquor abuse concerns and the premises appear to be well run. There was a reference by the Health representative to a moderately intoxicated patron, although he was not brought to Mrs Oliver’s attention, and the issue was not included in the original allegations.

[13] On 1 April 2000, the law in respect of the management of licensed premises was altered by Parliament. Section 115(1) provided that:

“At all times when liquor is being sold or supplied to the public on any licensed premises, a manager must be on duty and responsible for compliance with the Act and the conditions of the licence”.

[14] On 1 April 2006, the section was again amended and strengthened. Section 115 now reads:

(1) At all times when liquor is being sold or supplied to the public on any licensed premises a manager must be on duty.

(2) A manager on duty in respect of licensed premises is responsible for-

• (a) The compliance with and enforcement of-
  
  • (i) The provisions of the Act; and
    
  • (ii) The conditions of the licence in force in respect of the premises; and
    

(b) The conduct of the premises with the aim of contributing to the reduction of liquor abuse.

[15] The reasoning behind both amendments was to encourage the drive to raise the standards of those charged with the responsibility of supplying liquor to the public. 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’.

[16] The latest amendment requires the holders of General Manager’s Certificates not just to comply with the Act but enforce it as well. Furthermore for the first time, we see that duty managers have become responsible for the way the premises are operated with the aim of reducing the incidence of liquor abuse. The issue for us is about keeping standards high. We believe that if sanctions are imposed against managers who let standards slip or display unprofessional conduct, there is a good chance that such measures will ultimately encourage the reduction of liquor abuse. Conversely, to take no action in such circumstances would send out the wrong message. On the other hand we agree with Mr Bryant that cancellation of the certificate would be an unreasonable response to the conduct complained of.

[17] Although Deejay Enterprises Limited LLA 531 – 532/97 was decided prior to either amendment, 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”.

[18] It is a matter of regret that these incidents occurred. We note that Mrs Oliver was not well on at least one of the occasions. We hope that her appearance will have been a salutary lesson for her. We acknowledge her apology and in the circumstances we order that her General Manager’s Certificate be suspended for five weeks from Monday 11 June 2007.

DATED at WELLINGTON this 21st day of May 2007

Judge E W Unwin
Chairman

Liane Oliver.doc