Crepin and Harris v Invercargill Licensing Trust and Reid [2007] NZLLA 916 (19 September 2007)

Last Updated: 25 January 2012

Decision No.PH 916/2007
PH 920/2007

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 of on-licence number 073/LON/2992/2005 issued to INVERCARGILL LICENSING TRUST in respect of premises situated at 31 Dee Street, Invercargill, known as "Frog 'N' Firkin"

AND

IN THE MATTER of applications pursuant to s.135 of the Act for suspension or cancellation of General Manager's Certificate number 073/GM/6505/05 issued to NICOLA JAYNE REID

BETWEEN PETER CHARLES CREPIN
(Police Officer of Invercargill)

AND ARTHUR JOHN HARRIS
(Police Officer of Invercargill)

Applicants

AND INVERCARGILL LICENSING TRUST

First Respondent

AND NICOLA JAYNE REID

Second Respondent

AND

IN THE MATTER of an application by INVERCARGILL LICENSING TRUST pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at 31 Dee Street, Invercargill, known as "Frog 'N' Firkin"

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Dr J Horn

HEARING at INVERCARGILL on 4 September 2007

APPEARANCES

Sergeant A J Harris – NZ Police – applicant
Mr C W Ward – for respondents
Ms D M McDonald – Invercargill District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] There are five applications before the Authority. All applications relate to licensed premises known as the "Frog 'N' Firkin". The "Frog 'N' Firkin" is one of the most popular late night bars in Invercargill. According to the parties, the existence of a Night N Day store about 25 metres away has resulted in concentrated street activity in the area including fights and other disturbances. There are often lengthy queues outside the premises. It is accepted however, that many members of the public who cause disturbance in the area, have either been refused entry to the premises, or have been ejected. It is often the situation that the people in the latter category will have shown the "Frog 'N' Firkin" to have been the last place where they consumed liquor.

[2] The on-licence has been held by the Invercargill Licensing Trust (hereafter called the Trust), since 1994, and fell due for renewal on 27 May 2007. In its renewal application the Trust requested that there be a reduction in the authorised trading hours. Currently the premises is permitted to sell liquor between the hours of 9.00 am and 5.00 am the following day. The Trust requested that the closing hour be brought back to 4.30 am in line with the Invercargill District Licensing Agency liquor policy which suggests 4.30 am as being a more appropriate hour unless a specific reason is shown.

[3] The renewal application attracted an adverse report from the District Licensing Agency Inspector based on the fact that the premises had several appearances in the Alco-Link data, and were becoming known as problem premises. In addition it was alleged that there were incidents involving intoxication of patrons in or outside the premises.

[4] In early July 2007, two enforcement applications were received by the Authority. The first application was for the suspension of the on-licence. The grounds were that the licensed premises had been conducted in breach of ss.168(1)(a), 168(1)(b) and 164(1) of the Act. Furthermore it was alleged that the premises had been conducted in an improper manner.

[5] At the same time an application was brought for the suspension or cancellation of the General Manager's Certificate issued to Nicola Jayne Reid. The ground for the application was that Ms Reid had failed to conduct licensed premises in a proper manner. The particulars related to the same particulars that had been alleged in respect of the on-licence.

[6] On 6 August 2007, the Authority received a further application for the suspension of the on-licence. This was based on the grounds that (a) the licensed premises had been conducted in breach of ss.166(2) and 168(1)(a) of the Act, and (b) that the premises had also been conducted in breach of the condition of the licence. The condition requires the licensee to ensure that the provisions of the Act relating to the sale and supply of liquor to prohibited persons, are observed.

[7] The particulars related to a covert operation conducted by the Police in respect of the licensed premises. Two covert officers had entered the premises and observed two patrons who were intoxicated.

[8] The fifth and final matter related to an application for the cancellation or suspension of the General Manager's Certificate issued to Nicola Jane Reid who was the duty manager on the night in question.

[9] The application was based on the ground that the manager had failed to conduct the premises in a proper manner and similar particulars were alleged.

[10] Mr C W Ward acts for the Trust. He submitted a memorandum covering all five matters. The contents of the memorandum had been accepted and approved by the Police. The proposed resolution of all matters had been reached between high ranking members of the Police and senior management of the Trust. It was the result of discussion on a range of issues broader than just the specific incidents noted in the memorandum.

[11] The District Licensing Agency Inspector had her own concerns about the various incidents and had anticipated that a suspension would include a Saturday. However she accepted the settlement in the spirit in which it was made. She recorded her reservation that it was a one off situation, which normally would not have been supported.

[12] We are grateful to the parties for resolving all matters in a reasonable way. We believe that in most cases, local enforcement agencies and licensees, are in a better position than us, to determine the merits of an allegation, the remedial actions taken, and the long term educative process aimed at upholding the Act’s objective. The memorandum records that the Trust has always tried to maintain a close and co-operative relationship with the Police. The aim is to determine where problems are occurring, where staff have failed to perform, and what steps are appropriate to ensure that licensed premises owned and controlled by the Trust maintain high standards and are kept safe.

[13] It has been agreed after a series of meetings, that it is in the interests of the Police, the Trust, and the Trust staff members, as well as the general public, that community based solutions are preferable to the approach of referring all matters to the Authority. This accords with our view stated above.

[14] A collaborative approach has been taken by the parties in this spirit of co-operation and common interest. The basis of the approach is that issues such as intoxication will be dealt with as far as possible before they occur rather than afterwards. In particular the Trust has agreed, (in co-operation with the Police), that it will pay more attention to what occurs outside the premises, rather than focus just on the inside. For their part the Police will accept that education and skill training of staff in the premises is the first option for dealing with lapses. It is acknowledged nevertheless that applications before the Authority will continue to remain an option for the Police where other solutions are ineffective.

[15] It is accepted by the parties that on Sunday 17 December 2006, the Police made a routine visit to the premises. At about 2.30 am a male, who the Police believe was intoxicated, was seen to be in possession of a bottle of rum and cola which had been purchased for him by a friend. The male was only 17 years of age but was in possession of falsified identification which was good enough to mislead. It was accepted that the patron was sufficiently intoxicated to require some action to have been taken prior to the sale being made.

[16] The second visit was on 1 April 2007. A fight broke out on the dance floor between two males who were removed. This fight was spontaneous and although the participants were said to be intoxicated only one faced a charge. It was accepted by the Police that there were no signs of intoxication prior to the fight. However the Police located an intoxicated person who was asleep in the bar while the duty manager was outside the premises helping to deal with the previous matter. There was an argument about whether the person was intoxicated because the manager believed that he had a stutter.

[17] The third visit was on 20 May 2007 when the Police visited the premises at about 2.00 am. A male was observed to be intoxicated. He was duly asked to leave by the duty manager after his state of intoxication was pointed out. A second male was spoken to. He initially gave false details to the Police and later enquiries revealed that he was 17 years of age. His intoxication level was said to be from slight to moderate. This patron was also removed by the Police.

[18] The next visit was on 25 May 2007. On that occasion Ms Reid was the duty manager. Three intoxicated patrons were removed by the duty manager during the Police visit. One of them had been pointed out to her by the Police.

[19] The final incident occurred on 23 June 2007 and was part of a joint Police – Justice operation. At about 1.05 am a contingent of Police entered the bar and checked identification of all people. No underage patrons were found and any incidents of intoxication was identified to management.

[20] Shortly prior to this incident two covert officers had entered the premises. They identified an intoxicated male who was staggering and noted that he was served with liquor. A second patron was identified later in the morning but the duty manager disputed any suggestion that that person was intoxicated.

[21] It is acknowledged by the respondents that there were breaches of s.168(1)(a) as well as s.164(1) of the Act. As a result of the discussions between the parties it has been accepted that the on-licence should be renewed with the slight restriction in the trading hours. It has further been accepted that the on-licence should be suspended for three days, and the General Manager's Certificate issued to Nicola Jayne Reid should be suspended for two weeks.

[22] On a national basis, these sanctions are not inconsistent with other suspensions imposed against other licensees and managers for similar breaches. The difficulty in our experience is that all factual situations have their own unique characteristics. What can be just as important, is the way that respondents react and respond to such allegations in terms of tighter management regimes. What we are all seeking to achieve, is the raising of host responsibility standards.

[23] It seems to us that the proposed sanctions are a reasonable response to the agreed facts. Accordingly we order that on-licence number 073/LON/2992/2005, issued to Invercargill Licensing Trust, will be suspended from 9.00 am on Wednesday 12 September 2007, until 9.00 am on Saturday 15 September 2007.

[24] The General Manager's Certificate issued to Nicola Jayne Reid will be suspended for two weeks commencing on Wednesday 12 September 2007.

[25] The on-licence will be renewed with the trading hours amended as stated.

DATED at WELLINGTON this 19th day of September 2007

Judge E W Unwin
Chairman

Frog N Firkin.doc