Crepin v Cumberland [2007] NZLLA 957 (3 October 2003)

Last Updated: 26 January 2012

Decision No.PH 957/2007

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 of a General Manager's Certificate number 064/GM/65/2003 issued to NATHAN IAN CUMBERLAND

BETWEEN PETER CHARLES CREPIN
(Police Officer of Invercargill)

Applicant

AND NATHAN IAN CUMBERLAND

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at INVERCARGILL on 5 September 2007

APPEARANCES

Sergeant A J Harris – NZ Police – for applicant
No appearance by or on behalf of respondent
Mr D H Clearwater – Southland District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] This is an application brought by the Police for the suspension of a General Manager's Certificate issued to Nathan Ian Cumberland. The application was filed with the Authority on 19 December 2006.

[2] The application relates to two separate events. One back in November 2005, and more recent events in October 2006. The application is based on the grounds that Mr Cumberland failed to conduct licensed premises in a proper manner.

[3] The evidence shows that on night of 3 November 2005, the Police conducted a licensing visit to premises known as the "Ranch Bar" in Te Anau. Mr Cumberland was duty manager that night. In addition to his duties he was part of a band and he was playing a guitar and singing.

[4] Senior Constable Gordon Brett Pay was part of the Police group. He observed a male who was swaying badly and had a drunken expression on his face. When Mr Cumberland had finished playing, the Constable pointed out the patron to him. Mr Cumberland replied that they normally took him home when he got too bad.

[5] There was a second much younger person who was drinking from an RTD. The Senior Constable spoke with this person to ascertain his level of sobriety. He also mentioned him to Mr Cumberland who said he was thinking about stopping him.

[6] The Senior Constable returned approximately 30 minutes later. Mr Cumberland was still playing his guitar and singing along with others. He continued to do so for a period of approximately 30 minutes. During that period of time the Senior Constable noticed another patron who was drinking, and swaying, and had slurred speech. Yet a fourth person was noticed to be drinking water with a very drunken expression on his face and swaying badly.

[7] After this relatively long period of time, Mr Cumberland finally stopped playing and spoke to the Senior Constable. Mr Cumberland was told that the Police were unhappy with the number of intoxicated patrons in the bar. They contended that this was a direct reflection of his inability to manage the premises properly, particularly as he was playing a guitar. The bar was closed shortly after that time.

[8] No particular action was taken against Mr Cumberland at that time. The current application was the direct result of a visit approximately 12 months later made by Constable Glen Andrew Matheson of Te Anau. The Constable had earlier in the night, dealt with some disorder in the Te Anau area. He noted that two of the people that he dealt with, were in a state of intoxication. He stated that their speech was slurred and they were unsteady on their feet.

[9] He made a visit to the “Ranch Bar” approximately three hours later, and noted that Mr Cumberland was the manager on duty. He also observed the two people that he had earlier come into contact with. There was a third person who appeared to be intoxicated, in that he was having great difficulty in keeping his balance. The Constable spoke with Mr Cumberland about this person.

[10] There was another incident where Mr Cumberland tried to remove a person. It was clear that the person that had been pointed out was intoxicated. He was having great difficulty in putting a sentence together, his speech was slurred, and he was holding on to a barrel to remain upright. Mr Cumberland agreed that the person was far too intoxicated to be on the premises and the Constable assisted Mr Cumberland to remove the person.

[11] The Constable returned to the bar about 30 minutes later. He spoke to a person who he had noted. That person was aggressive and had a bleeding lip as a result of an altercation on the dance floor. When Mr Cumberland was spoken to the following day about the level of intoxication on the premises, he tended to put the blame on his employer.

[12] The matter was discussed with the licensee and as a result the licensee terminated Mr Cumberland's employment. Accordingly a warning was duly issued to the licensee.

[13] Mr Cumberland has not appeared. We understand that following his termination of employment he is no longer involved in the hospitality industry. Consequently we do not have the benefit of his response to the general allegations that he has neglected to carry out his duties as prescribed in s.115 of the Act. We agree with the Sergeant's submissions that if a duty manager is part of a band, then he cannot be said to be on duty. It is impossible for him to conduct premises with the aim of contributing to the reduction of liquor abuse. The presence of a number of persons in states of intoxication is adequate evidence of this fact.

[14] It is clear to us that Mr Cumberland has failed to conduct premises in a proper manner. He has failed to comply with the responsibilities and expectations placed on the shoulders of the holders of managers’ certificates. All managers are required to conduct premises with the aim of contributing to the reduction of liquor abuse. The anecdotal evidence is that since Mr Cumberland has no longer been involved with the licensed premises, there has been an improvement in the way the premises have been operated particularly in terms of disorder.

[15] In those circumstances we believe that a suspension of the General Manager's Certificate is desirable. The certificate issued to Mr Nathan Ian Cumberland is now suspended for a period of four months which will commence on Wednesday 13 September 2007.

DATED at WELLINGTON this 3rd day of October 2007

B M Holmes
Deputy Secretary

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