Hughes v Huntington [2008] NZLLA 822 (19 June 2008)

Last Updated: 23 January 2012

Decision No. PH 822/2008

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 suspension or cancellation of General Manager’s Certificate number 049/GM/286/2007 issued to JONATHAN DAVID HUNTINGTON

BETWEEN STEPHEN HUGHES

(Police Officer of Upper Hutt)

Applicant

AND JONATHAN DAVID HUNTINGTON

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at WELLINGTON on 15 May 2008

APPEARANCES

Sergeant S A Hughes – NZ Police – applicant
Mr A G Sherriff – for respondent
Mr A R Cox – Upper Hutt District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Jonathan David Huntington was granted a General Manager’s Certificate on 25 July 2007. On 4 April 2008, the Authority received an application for the cancellation or suspension of his certificate. The ground for the application is that Mr Huntington failed to conduct licensed premises in a proper manner.

[2] The particulars in support of the application referred to a special licence issued to the Wellington Racing Company Limited, (hereafter called the racing company), to operate a number of bars at several locations at the Trentham Race Course at Trentham, Upper Hutt, on Saturday 26 January 2008. It was alleged that one of the bars known as the “Big Kumara”, situated in the centre of the racetrack, was under the control of Mr Huntington as duty manager.

[3] It was claimed that the Police had visited the “Big Kumara” on three occasions during the day. It was alleged that Mr Huntington was absent twice. On the second occasion it was contended that intoxicated patrons were found on the premises. On the third occasion it was claimed that seven arrests had been made. Of the seven persons arrested, it was alleged that four were intoxicated, and two were under the age of 18 years.

[4] Mr Huntington was represented by Mr A G Sherriff. He advised that his client disputed most of the evidence, and in particular, the inferences that could be drawn from the facts. Specifically he argued that the Police had failed to prove any breaches of the Act. He submitted that there was no evidence of minors being in possession of, or drinking liquor, while in the enclosure. He also submitted that there was no evidence of any intoxicated patron drinking, or in possession of, or being sold liquor. Alternatively, he contended that there was no evidence that Mr Huntington had failed to conduct the premises properly. He argued that the issues could be resolved on the facts alone, and the application should be refused.

The Application

[5] Sergeant S A Hughes is stationed at Upper Hutt and holds the licensing portfolio. In that capacity he was involved in planning meetings with the racing company, leading up to the Wellington Cup Race Day, to be held on Saturday 26 January 2008. He produced a copy of the special licence application showing that Mr Huntington was the nominated duty manager for the “Big Kumara” marquee.

[6] The special licence was issued with a number of conditions, including the right to sell liquor between 11.00 am and 7.00 pm. All beer tents and marquees were designated as supervised, and food had to be available for consumption. The racing company had developed a comprehensive alcohol management plan designed to avoid some of the problems encountered at the 2007 Wellington Cup Day. This included a ban on alcohol being brought onto the racecourse. In addition, wristbands were to be issued for members of the public aged between 18 and 25, once the age of the patron had been established. The plan also stated that there would be advertising and website information to inform the public of alcohol policies on-course, including the policy that intoxicated persons would be ejected from the premises.

• [7] The Sergeant was on duty on the day in question. He said that his main task was to ensure that liquor was not brought on to the racecourse. He stated that at about 3.00 pm, he went to the “Big Kumara” to speak to bar staff to see how the event was progressing. He noted that there was a band on a stage on the back of a truck playing very loudly. He said that the bar was tightly packed about ten-deep. There was such a crush it was impossible to get through. The Sergeant opined that many of the patrons were intoxicated, and in high spirits. He noted that security people were busy at the entrance to the marquee, checking people before they entered.
  

[8] The Sergeant’s evidence was that at about 4.00 pm there was a commotion in the crowd of dancers. A young woman had been hit on the head by a flying bottle. The offender was promptly arrested for disorderly behaviour and injuring with reckless disregard. The offender admitted throwing a bottle but said that he had not meant to hit anyone. The victim was taken to hospital and received a stitch to her wound.

[9] The Sergeant confirmed that the security fence around the marquee had to be opened to allow access for the ambulance. He said that other bottles were thrown in their direction when this was taking place. Sergeant Hughes noted that there was a large number of discarded bottles about. He saw one person, whom he believed was from the band, picking up empty bottles from around the stage area. He gave evidence that he removed a young male who was intoxicated and acting in a disorderly manner. He gave the person a warning and took him to the water tent, where he cut off his wristband, preventing him from purchasing any more liquor.

[10] It appeared that the Sergeant was in the area for about two hours. During that time he said he was not approached by anyone from the venue’s management team. When pressed about whether the Police were seeking cancellation or suspension of the certificate, Sergeant Hughes opted for cancellation. He submitted that if Mr Huntington had been actively managing the premises, the situation would not have evolved in the way that it had. He argued that a responsible manager would have identified issues before they escalated or were allowed to get out of control.

[11] Mrs J A Parris is a Regulatory Officer and Health Promoter with Regional Public Health. She was part of a joint inspection team to check compliance matters. At about 10.00 am, she checked the bars to see that all listed duty managers were on site. She noted that Mr Huntington’s name was properly displayed on the outside of the “Big Kumara” tent. However, he was not present. As Mr Sherriff pointed out, there was no legal requirement for him to be there as the special licence allowed sales of liquor from 11.00 am.

[12] Mrs Parris returned at about 3.30 pm. She believed that Mr Huntington was again absent, although she acknowledged that the tent was very full, and she had not asked to speak with him. She spent most of her time tending to the person who had been hit by the flying bottle. She supported the Sergeant’s evidence by stating “A number of patrons were assessed as being intoxicated.”

[13] Sergeant A P Kowalczyk was also present at the Trentham Race Course that day. He stated that his main task was to focus on the centre of the racecourse. This area was dominated by the “Big Kumara” tented bar area, which was situated inside a fenced enclosure. He noted staff checking identification at the entrance. He and his colleagues did a walk through at about 4.10 pm. He considered that many of the patrons were showing signs of intoxication.

[14] Over the next two and a half hours, the Sergeant reported that there were six incidents which appeared to reflect on the way that the premises were being controlled. Another incident referred to a 17-year old female but there was no evidence that she was in the “Big Kumara”. The relevant incidents were as follows:

• [a] At 4.55 pm Sergeant Kowalczyk and his colleagues were approached by a male. In the Sergeant’s opinion the person was clearly intoxicated and exhibited the following signs of intoxication: slurred speech, inappropriate behaviour (yelling), swaying on his feet and a strong smell of liquor. The patron was told he was intoxicated and was required to leave. As he was doing so, he became aggressive and violent. He was arrested and charged with disorderly behaviour.
  
• [b] Sergeant Kowalczyk produced a summary of facts which showed that at 5.00 pm, a 17 year-old male who had been drinking, (and was described as moderately intoxicated), threw two empty beer bottles into the crowd. Fortuitously, no person was hit. He then threw another empty bottle at the Police. He was arrested and charged with disorderly behaviour and possession of cannabis. The Sergeant was unable to say whether the person was wearing a wristband.
  
• [c] At 5.32 pm the Police group located another male who was exhibiting signs of intoxication. This person was escorted from the premises without incident.
  
• [d] At 5.48 pm, the Sergeant noticed a colleague leading away another male. Because other patrons were becoming involved, the Sergeant and others had to form a physical barrier to protect them both. During the process several patrons were warned for obstruction. One was arrested and that person then assaulted Sergeant Kowalczyk. The patron was said to be intoxicated. He was charged with obstruction and assaulting Police.
  
• [e] At 5.50 pm, a patron threw a half-full water bottle into the centre of the crowd. He was arrested and charged with disorderly behaviour.
  
• [f] At 6.42 pm, a patron kicked a glass bottle narrowly missing other patrons. He was arrested and charged with disorderly behaviour.
  

[15] According to the Sergeant, all the offenders pleaded guilty and were duly dealt with in the District Court. Mr Sherriff pointed out that there were indications that some of them had initially entered pleas of not guilty. However, in the absence of any other evidence we accept the Sergeant’s word.

[16] Sergeant Kowalczyk confirmed that the standard of control and behaviour of the crowd was an improvement on the year before. He stated that in his view, members of staff were fully occupied supplying liquor and no one was available to check intoxication levels. He contended that he was not approached by Mr Huntington at any stage during all the activity described above.

The Response

[17] Mr Jonathan David Huntington confirmed that he had no previous convictions and that this was his first appearance before the Authority. He described his four years experience in the hospitality industry. He said that the racing company had entered into a contract with Gibson Security to provide security for the Wellington Cup festival. In turn the “Big Kumara” management had arranged with Gibson Security to provide security personnel for its enclosure. Mr Huntington was part of the planning team that had met with the racing company prior to the day.

[18] Mr Huntington was part of the “Big Kumara” staff at the previous race meeting in 2007. He said that a number of changes had been implemented because of problems the previous year. For example, the number of security staff had been doubled. In addition, the height of the security fence had been increased to prevent patrons climbing over it once they had been removed. Furthermore, most of the members of staff were equipped with radio communication.

[19] Mr Huntington confirmed that of the 17 food and beverage staff employed on the day, 10 were serving in the two bar-service areas, four were restocking and cleaning up, two were out the front removing rubbish, and one was responsible for food. He maintained that the two members of staff out the front removing rubbish would also have been moving amongst the patrons.

[20] Mr Huntington said that on the day in question he moved between the two bars, but for much of the late afternoon, he was behind the main bar, because it was so busy. He thought that there were more people present than had been expected. He said that he saw a few people being removed for intoxication, and he used his radio to ask for others to be removed for the same reason. He did not think there were any Police concerns, and had been advised that the Police were relaxed about the situation. In his view, there was less intoxication than the previous year.

[21] Mr Huntington appeared to place some of the blame for what had happened on the gap in the security fence created by the Police. He had been told that there was a large flow of unchecked people into the “Big Kumara” until the gap was secured. He was also told that once the Police had breached the fence, other gaps were created. He contended that as duty manager he would have been unable to see these people entering the marquee. Mr Huntington also placed some of the blame for what had happened on the fact the racing company's bar had run out of liquor. He said:

“With the benefit of hindsight, I can now see that people probably came to our premises late in the afternoon after the Wellington Race Club’s bar ran out of alcohol.”

[22] Mr Huntington argued that at no point did the Police or Public Health ever ask for him. On the other hand he conceded that because the marquee was so busy, they probably did not see him serving behind the bar. He accepted that normally, when working as a duty manager, he spends 20% of his time behind the bar, and the rest of the time he is roving. On this day he spent 80% of his time behind the bar, because he saw it as the front line. He produced a copy of a debriefing document from Gibson Security. The document indicated that the Police were happy with intoxication levels. Gibson Security suggested that a further four guards be employed the following year.

[23] Mr Huntington concluded:

“If we are there next year and I am duty manager, I intend to be a roving in “front of house” for most of the time rather than behind the bars serving for most of the time. That way, I will be visible to Police; I will be there if the Police visit; and I will be better able to look out for under 18 year olds and people who may be becoming intoxicated to a point where it may become necessary to remove them. I will also be better able to see if any breaches of the fence line occur again.”

The Authority’s Decision and Reasons

[24] It is useful to commence our reasoning by referring to the responsibilities that Parliament has placed on duty managers. When the Act was amended in 1999, s.115 (1) was strengthened to emphasise the fact that a manager must be on duty at all times when liquor was being sold or supplied. The amendment required that all managers would be responsible for ensuring that the premises complied not only with the Act, but also with the conditions of the governing licence.

[25] Prior to the amendment, this duty had been shared with the licensees. As a result of the amendment, a duty was placed on all licensees to take all reasonable steps to ensure that the manager complied with his or her obligations.

[26] On 1 April 2006, the section was again amended and strengthened. Managers were given further responsibilities such as being responsible for the enforcement of the Act, and the conduct of the premises with the aim of contributing to the reduction of liquor abuse. (Our emphasis).

[27] Section 115 of the Act 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.

[28] It is clear that the added responsibility in s.115 (2)(b) above leads directly back to the object of the Act, contained in s.4 as follows:

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.

[29] This case is about a duty manager being responsible for the conduct of licensed premises, with the aim of contributing to the reduction of liquor abuse. The issue is whether we have been satisfied that the allegation has been established. The vital question is, on the balance of probability, did Mr Huntington fail to conduct the licensed premises known as the “Big Kumara” at the Trentham Race Course in a proper manner? The applicant does not have to prove a breach of the Act. There has to be a failure to conduct licensed premises properly.

[30] In the recent decision of Stephen Dennis Sargent v Thornley Taverns Limited PH 772/2008, we made the following comments about how intoxication should be established:

"Before discussing the allegations, it is appropriate to make some comments about the issue of intoxication and how it should be established. Mr Stanbridge was correct in his understanding. In a perfect world, we would expect a member of the Police to interview the patron, and then have his or her assessment corroborated by a colleague. The duty manager would then have an opportunity to talk with the patron and form a separate judgement. Generally such assessments will be conducted away from the bar.

When enforcement applications arise, we expect to hear evidence about the loss or impairment of the patron’s bodily or mental faculties. A general statement such as “There were a number of patrons, many of whom were intoxicated” is not likely to have enough probative value to result in a finding that there has been a breach of the Act. The observation that a person was moderately intoxicated would be equally lacking in evidential value, even from an experienced officer. What is needed is a description of the loss or impairment, or the reasons why the patron is said to be demonstrably intoxicated."

[31] These comments relate to proving a breach of the Act. When discussing the way the premises have been conducted, it is permissible to refer to intoxication in general terms. However, we will be slow to make orders unless there is specific evidence. In this case there was evidence of intoxication as well as disorder. Granted Mr Huntington was not given the opportunity to check the assessments, but this was because he was too busy serving liquor.

[32] The evidence shows that a person threw a bottle into the crowd hitting a patron. There was no evidence of the patron’s state of intoxication. Sergeant Hughes removed an intoxicated patron. No evidence was given about the level of intoxication although the person was also removed for disorderly behaviour. Sergeant Kowalczyk removed a second patron who was clearly intoxicated. A patron described as moderately intoxicated threw two empty bottles into the crowd. Although he was 17 years of age, there was no evidence as to whether he was wearing a wristband and there was no way of knowing whether he had presented false identification. A patron was arrested for obstruction and assault. He was said to be intoxicated.

[33] Accepting that it is possible that some of the patrons had gained access to the enclosure by getting through a gap in the fence, the fact is that the duty manager was in no position to do anything about the way the premises were being conducted. He was busy serving people who were up to 10 deep in the crush to be served. This is clearly unprofessional conduct. Given the above facts, it could never be asserted that Mr Huntington was conducting the premises with the aim of contributing to the reduction of liquor abuse.

[34] By choosing to work behind the bar rather than roving, Mr Huntington put himself in a position where he was unable to monitor the crowd adequately and thus could not comply with the racing company's alcohol management plan of removing intoxicated persons from the premises. It is not up to the Police to remove his patrons for him. The quid pro quo for being granted a certificate is the responsibility to see that the premises are operated properly and within the provisions of the Act.

[35] Mr Huntington himself aptly summed up his failings in the final paragraph of his brief set out in paragraph [23] above. If the Police could not see him, then he could not see them. If he could not see the Police, how could he monitor levels of intoxication? The Police would have been very active between 5.00 pm and 6.45 pm and would be more likely to have been seen than an extremely intoxicated patron. As he implied in his brief, he would do things differently next time. However, the alcohol management plan in operation for 2008 had already made clear the need for more vigilance than he displayed.

[36] In summary, Mr Huntington failed to conduct the premises in a proper manner. He failed to live up to the standards expected of the holder of a General Manager’s Certificate. His failure was aggravated by the fact that the event occurred during what is known as a manager’s first ‘probationary’ year. As Sergeant Hughes submitted, Mr Huntington failed to actively manage the premises.

[37] Given that the issues are about intoxication it is clearly desirable to make a suspension order. Although the Sergeant was pressed into selecting cancellation as his preferred choice of sanction, we do not believe the circumstances warrant such an extreme consequence. Mr Sherriff was well aware that suspension was a possibility, and is equally aware that if the grounds of an application are established, then under s.135(6) of the Act the certificate may be cancelled or suspended. The application could also be adjourned under s.135(7) of the Act to give Mr Huntington an opportunity to remedy the shortcomings. However, we believe that this option is not appropriate given that the event is an annual one.

[38] The function of s.135 of the Act is to enable us to enforce sound management of licensed premises. This was a case where there was a managerial failure that was subsequently recognised by the manager. We anticipate that the draft “Guidelines for the management of alcohol at large scale public events” published by ALAC, will be required reading for Mr Huntington and his employers. In this case, there were issues of intoxication, which gives an added seriousness to what happened. It was fortunate that there were no more serious injuries. In summary, the issue of host responsibility seems to have been subsumed by the desire to sell more liquor.

[39] Accordingly, and for the reasons stated, we order that General Manager’s Certificate number 049/GM/286/2007, issued to Jonathan David Huntington, is suspended for 10 weeks from Monday 28 July 2008.

DATED at WELLINGTON this 19th day of June 2008

Judge E W Unwin
Chairman

Hungtinton.doc