Pay v Kennedy [2008] NZLLA 654 (21 May 2008)

Last Updated: 31 January 2012

Decision No. PH 654/2008

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of a rehearing pursuant to s.110(3) of the Act of an application pursuant to s.135 of the Act for suspension of General Manager’s Certificate number GM/3786/99 issued to CHRISTOPHER HUNIA KARAITIANA KENNEDY

BETWEEN GORDON BRETT PAY

(Police Officer of Invercargill)

Applicant

AND CHRISTOPHER HUNIA KARAITIANA KENNEDY

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at INVERCARGILL on 22 April 2008

APPEARANCES

Sergeant A J Harris – NZ Police – applicant
Mr C H K Kennedy - respondent
Mr M J Sarfaiti – Southland District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Mr Christopher Hunia Karaitiana Kennedy has held a General Manager’s Certificate since 1999. On 2 April 2007, the Authority received an application brought by the Police for the suspension of the certificate. The ground for the application was that Mr Kennedy had failed to conduct licensed premises in a proper manner.

[2] The particulars in support of the application referred to a number of licensing incidents between February and March 2007. They related to four visits made by the Police to the “Highway 99 Café-Bar” in Tuatapere. These premises were owned and operated by Mr Kennedy at the time, but have since been sold. Mr Kennedy was said to be the duty manager on each occasion that the Police visited. There were allegations of intoxicated persons being found on the premises. On three occasions it was claimed that Mr Kennedy had served patrons after they had been assessed as intoxicated. It was also alleged that insufficient food was available, that the signage was inadequate, that patrons were illegally drinking outside the premises, and that there was no host responsibility policy.

[3] The application came before us on 4 September 2007. Due to a breakdown in communication, Mr Kennedy was unaware of the hearing. By this time he had moved away from Tuatapere. Consequently he did not appear at the hearing. The evidence was heard in his absence, and an enforcement order was made. (See LLA PH 880/2007). When Mr Kennedy discovered what had happened, he requested a rehearing of the application. The application was granted, and a further hearing was scheduled and the evidence was re-heard.

[4] Mr Kennedy disputed most of the evidence, and in particular whether the patrons were intoxicated. He was not represented and his presentation suffered from lack of a preparation and organisation. He believed that he had been inappropriately and unfairly targeted, and that there was a pre-determined course of action to have him unjustly removed from the industry. He argued that he was suitable to continue to hold the certificate. The primary issue became one of credibility.

The Application

[5] Constable Peter Charles Crepin is a member of the Invercargill Licensing Squad. On Saturday 24 February 2007, just after midnight, he visited the premises with Senior Constable Gordon Brett Pay. Mr Kennedy was the duty manager.

[6] Senior Constable Pay noted that the on and off-licences were not displayed. The renewal certificates were on the wall near the main entrance but were impossible to read. There was a menu displayed but it stated that the meals were only available until 8.00 pm. Another sign stated that the meals were cooked by the Tuatapere Four Square. Senior Constable Pay asked Mr Kennedy what food was available, and was told that he could have toasted sandwiches. When it was suggested that there were no signs to this effect, Mr Kennedy said that everyone knew that they only had to ask, and he would make toasted sandwiches.

[7] The Senior Constable pointed out that there was no licence on display. Mr Kennedy pointed to the renewal certificates. At that stage the Senior Constable saw a young male aged about 22 years leaning against the bar with an empty spirit glass in front of him. He was unsteady on his feet. He pointed the patron out to Mr Kennedy. Mr Kennedy said that the patron had not been there long, and that he had been drinking beer but was now drinking bourbon. Senior Constable Pay said that he believed that the patron was intoxicated. Mr Kennedy replied that he knew the patron and he always looked like that. He then served the patron with another glass of bourbon.

[8] At this stage the patron moved away to the fireplace still unsteady on his feet. Constable Crepin was asked to assess the patron. He noted that the patron was unsteady on his feet and had a glazed appearance. He spoke with the person whose breath smelt of liquor, and whose speech was slightly slurred. He noted that even when leaning against the bar, the patron was unsteady on his feet. The patron told Constable Crepin that he had been in the bar for two hours, and had consumed 10 double bourbon and cokes. The Constable considered that the patron was showing clear signs of intoxication.

[9] Senior Constable Pay then asked to speak with Mr Kennedy outside. There he noted a number of empty bottles. He told Mr Kennedy that he was responsible for ensuring that patrons did not take liquor off the premises. Mr Kennedy said that the bottles were from people who were arriving at the bar. The Senior Constable told Mr Kennedy that he had just seen him serve an intoxicated person. Mr Kennedy became angry and demanded to know the definition of intoxication.

[10] At that time the Senior Constable was advised that the only food that was available on the premises was three slices of bread, some cheese and a small amount of shaved ham. He suggested to Mr Kennedy that he was not being a responsible host. Mr Kennedy then told his customers that he had to shut the bar or be fined. This antagonised the patrons but they left. Both Constables thought that there were other patrons who were also intoxicated, but they were unable to make an assessment given that the patrons were leaving.

[11] After the patrons had left Constable Crepin and Senior Constable Pay spoke with Mr Kennedy about his responsibility to ensure that patrons did not become intoxicated. Constable Crepin formed the view that Mr Kennedy did not believe that this was his problem. At one stage Mr Kennedy had said, “Why do you think they come here?” He was asked about the condition of his licence regarding alternative transport and pointed out a bar mat that featured a Policeman and the caption “Who’s going to take you home to-night?” He was asked where his host responsibility policy was, and appeared to have no idea what the Constables were talking about.

[12] Senior Sergeant Bruce Hamilton Terry is in charge of the Southland Rural Policing area, which includes Tuatapere. He had visited the premises known as “Highway 99 Café-Bar” at about 12.30 am on Saturday 4 March 2007. He noted a few people drinking in the smokers’ area outside. He observed a male and a female singing at the karaoke machine. He thought that both of them were intoxicated. He said that the male had difficulty in standing and was staggering. He was unable to sing any of the words being shown on the screen.

[13] Senior Sergeant Terry thought that the female was less intoxicated, although it was clear from her facial expression and her movements, that she was affected by liquor. After five minutes or so, the Senior Sergeant pointed the male out to Mr Kennedy. He said he believed that the person was intoxicated. Mr Kennedy immediately replied that he had not served the male, and he must have just come in.

[14] The Senior Sergeant told him that the person should not be in the bar. He later observe this person stagger out of the bar. He assumed that he had been told to leave. The person spoke with the Senior Sergeant. He was belligerent and argumentative. His voice was slurred and he was difficult to understand. He told the Senior Sergeant that he was not drunk, and the Police should not be trying to close Mr Kennedy down. The Senior Sergeant confirmed that since Mr Kennedy had sold the business, there had been no further problems at the premises.

[15] Mr Tony Wayne Bell was a member of the Police between 1991 and January 2008. He was based at Tuatapere for three years. He stated that in his opinion Mr Kennedy’s management of the bar known as “Highway 99 Café-Bar” had made a negative impact on the community. He gave evidence of early problems with patrons drinking outside the licensed premises in the smokers’ area. This area finally became part of the on-licence on 23 May 2007. Prior to that time, the smokers were in the habit of taking their drinks outside.

[16] Mr Bell gave evidence that at about 2.00 am on Saturday 3 March 2007, he made a routine visit to the premises. Outside the premises, he found a young man whom he knew, holding a pint glass of beer. This person was unsteady on his feet, stumbled as he walked, and had trouble recognising the Constable. He formed the belief that the young man was intoxicated. He told the young man to take the glass back to the bar, and not to drink anymore.

[17] Mr Bell went into the bar where he found that Mr Kennedy was the duty manager. He told Mr Kennedy what had transpired. Mr Kennedy replied that the young man was old enough to drink. The Constable told Mr Kennedy to cut service to the patron and send him home. Mr Bell stated that the next morning the young man's father had called to see him to say that his son had not come home. Mr Bell was able to tell him that his son was probably sleeping off a hangover. The father then contacted Mr Kennedy who confirmed that his son had been in the bar, but had not been intoxicated.

[18] When he was in the bar during this visit, Mr Bell was approached by a female patron who was known to him. She was unsteady on her feet, her breath smelt of liquor, she was slurring her words, and not making sense. Mr Bell referred the patron to Mr Kennedy who said he was closing shortly.

[19] Senior Constable Pay returned to the bar on 6 March 2007 with a representative from Public Health South. There was a discussion about how to make the business compliant with the conditions of the licence. The meeting was followed up with a letter covering 10 licensing issues and a reminder to Mr Kennedy that liquor abuse extended past the confines of the bar, and was also measured by its impact on the community.

[20] The two Constables visited the premises just after midnight on Saturday 10 March 2007. Mr Kennedy was on duty. The signage had not been altered. Mr Kennedy said that the licences had not arrived. Constable Crepin gained the impression that several patrons saw the presence of the Police as an affront.

[21] Senior Constable Pay saw a patron sitting at a table drinking. He had a drunken expression on his face and was swaying. He seemed deliberate with his movements. When his glass was empty, another male took it and went to the bar where he ordered two beers. Before Mr Kennedy served the patron, Senior Constable Pay pointed out that one of the beers was for the patron sitting at the table. Mr Kennedy said he knew the patron, and that he had not been there long and that it was his daughter’s birthday.

[22] Senior Constable Pay asked what Mr Kennedy thought of the patron’s state of sobriety at which Mr Kennedy became angry and asked the Senior Constable if he wanted anyone to drink there. He then went over and fetched the patron and told him that the Senior Constable thought he was drunk. The two of them then went outside where Mr Kennedy calmed down. He said he was sick of the Police coming to his bar and was going to refer the matter to the Police. On his return to the bar he poured a 12 oz beer and handed it to the patron in question.

[23] Constable Crepin was then asked to make an assessment of this person. He noted that the patron was leaning on the bar, drinking. He was swaying, his face was flushed, and his eyes appeared to be glazed. They had a conversation and he noted that the patron’s speech was slightly slurred, but improved with time. The patron was very upset having apparently been told that he was drunk. The persons stated that he had shared one and a half bottles of wine with his wife before coming to the bar, where he had consumed two glasses of beer. Constable Crepin determined that the patron was showing signs of being affected by liquor.

[24] Constable Crepin had noticed two males playing pool. Both had flushed faces, and both were unsteady on their feet. One, (whose eyes were unfocussed), was seen drinking from a quart bottle of beer. Constable Crepin asked Senior Constable Pay to make an assessment of this patron. Senior Constable Pay thought that this person had a very drunken expression and was swaying. He was belligerent, and had been drinking since the Police had arrived. Senior Constable Pay asked Mr Kennedy what he was going to do about the intoxicated people in the bar, and pointed out the person he had just assessed.

[25] At that time Mr Kennedy became agitated and spoke on the microphone. He said he was closing the bar because the Police had made him do so. At this time the first patron who had been seen playing pool confronted Constable Crepin and was quite aggressive and belligerent. He was slurring his words. Another patron who was leaving said “Leave Chris alone. He’s a good bastard. He drives us home when we are pissed so we don’t have to drive.”

[26] The person who had just been assessed then asked Mr Kennedy for a four-pack of bourbon and handed over money. The patron took a four-pack from the chiller and sat it on the bar. Senior Constable Pay then asked Mr Kennedy how intoxicated he thought this person was, seeing that he had just served him. Mr Kennedy replied that he had not served him and told the patron to put the cans back in the chiller. Several days later, the Senior Constable received a letter of complaint from Mr Kennedy’s lawyer.

[27] Applications in respect of the on and off-licences were then filed, along with the present application in respect of Mr Kennedy’s certificate. Once it was confirmed that Mr Kennedy had sold the business, the applications in respect of the licences were withdrawn.

The Response

[28] Mr Kennedy stated that he had owned the “Highway 99 Café-Bar” for about three years, having been in the industry for about 35 years. He said that Tuatapere was a small community and he knew everyone. He believed that the people had no where else to go for entertainment, and he believed that he was providing a service to the community.

[29] Mr Kennedy explained that he had been away for seven months looking after other premises in later 2006, and had left his partner in charge. He said he had been back about a week and a half when the Police first arrived at the premises. He said he was unfamiliar with the background that had resulted in the Police interest. He argued that he always provided plenty of food for his patrons, and that he was a good host with a lot of support.

[30] In cross-examination Mr Kennedy took issue with some of the factual details. For example, if the Police referred to a patron as being intoxicated, Mr Kennedy often suggested that they had just arrived on the premises. In respect of the person singing on the karaoke machine, he believed that the person had just arrived after the Police, and that at any event, he had not served him. As far as the lack of appropriate signs was concerned, he suggested that the Inspector had not reported that there was a problem.

[31] Mr Kennedy contended that he knew his patrons because he saw them every day. He said he therefore knew when they were intoxicated. It was his argument that the people who had been assessed by the Constables as being intoxicated were no different than they normally were when they drank at his premises. He denied asking the Police if they knew why his patrons came to drink at his establishment, if not to become intoxicated. He seemed to be aware that his main task as a manager was to ensure that the patrons did not become intoxicated.

[32] Mr Kennedy’s position was best summed up by his lawyer, who wrote a letter of complaint to the Police, on 12 March 2007. He complained that the Police had told him that as he was from the “old school” he was not wanted as a licensee. The lawyer said that the person identified as intoxicated on 24 February 2007, suffered from a physical disability and walked with a limp and that the Police had confused the disability with intoxication. For those reasons it was alleged that Mr Kennedy had been unfairly targeted.

The Authority’s Decision and Reasons

[33] In an application such as this we are required to examine the evidence to see whether we are satisfied that the allegations have been established. If that is the case, we must then decide whether it is desirable to make a suspension order, and if so, the length of such suspension. The application could also be adjourned under s.135(7) of the Act to give Mr Kennedy an opportunity to remedy any shortcomings. However, we believe that this option is not appropriate. Basically, Mr Kennedy thought he was being picked on. At that time he had very little understanding of his role as a manager under the Act.

[34] In terms of credibility, we have little hesitation in ruling against Mr Kennedy. He faced a large amount of credible evidence from members of the Police who were sober, skilled in making observations, experienced in assessing intoxication, and trained to take notes. The issue in this case was not so much the exact detail of what was said and observed, but the evidence showed that Mr Kennedy had failed to conduct the premises in a proper manner.

[35] On three occasions Mr Kennedy was advised that in the opinion of two officers, one of his patrons was intoxicated. Mr Kennedy disagreed. He was entitled to do so. It is accepted that an assessment of intoxication is subjective. A manager might well have a lower threshold. Differences of opinion will often result from a number of factors including time and place, experience, judgement and competence.

[36] But on the first occasion when this happened on 24 February 2007, Mr Kennedy served the nominated person with another glass of bourbon. On the second occasion on 10 March 2007, he poured the patron a 12 oz beer. On the third occasion on 10 March 2007 he took money for the sale of a four-pack of bourbon. He was effectively encouraging liquor abuse.

[37] To act in such a provocative and irresponsible way is almost without precedent. Mr Kennedy was effectively saying not only that he disagreed with the assessments of two very experienced Constables, but that he had no intention of managing his premises in the way that they were recommending. He was either unaware of, or did not care about, his responsibility to manage the premises with the aim of reducing the potential for liquor abuse.

[38] In summary, there were six incidents of patrons being intoxicated or affected by liquor. On each occasion a separate assessment was made. There were the three incidents where Mr Kennedy ignored the warnings. Given that there was a factual dispute about some of the levels of intoxication, the summary could hardly be much worse, particularly when coupled with the other concerns about lack of food, lack of signage and lack of a host responsibility policy

[39] It is clear to us that Mr Kennedy failed to live up to the standards expected of the holder of a General Manager’s Certificate. The conduct was aggravated by the fact that a warning letter sent out on 7 March 2007 was basically ignored.

[40] Since 1 April 2000 the law in respect of the management of licensed premises has been twice amended. It is our view that both amendments were designed 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 who are committed to supervising the sale and supply of liquor in a responsible way. Since 1 April 2006, duty managers have become responsible for the way the premises are operated, with the aim of reducing the potential for liquor abuse.

[41] One of the factors which affects the way we exercise our discretion is contained in s.4 of the Act. This reads:

The object of this Act is to establish a reasonable system of control over the sale and supply of liquor to the public with the aim of contributing to the reduction of liquor abuse as far as that can be achieved by legislative means.

The Licensing Authority, every District Licensing Agency, and any Court hearing any appeal against any decision of the Licensing Authority, shall exercise its jurisdiction, powers and discretions under this Act in the manner that is most likely to promote the object of the Act.

[42] We appreciate the effort made by Mr Kennedy in calling for and attending the rehearing. We acknowledge his good record up to now. We accept his desire to keep such a record intact. However, we believe that suspending his certificate will more likely than not promote the Act’s object. In this case there were not only examples of intoxication on the premises, but a complete lack of understanding and co-operation with the Police. Mr Kennedy was fortunate that the application involved suspension only.

[43] Accordingly, and for the reasons stated, we order that General Manager’s Certificate number GM/3786/99, issued to Christopher Hunia Karaitiana Kennedy, is suspended for six months from Monday 16 June 2008.

DATED at WELLINGTON this 21st day of May 2008

Judge E W Unwin
Chairman

Kennedy.doc