Lawn and Faass v Arnold and Arnold [2009] NZLLA 1002 (31 August 2009)

Last Updated: 27 January 2012

Decision No. PH1002/2009 – PH 1006/2009

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, cancellation or variation of on-licence number 059/ON/157/2004 issued to the partnership of EDWARD WILLIAM ARNOLD and MARY THERESIA ARNOLD in respect of premises situated at Hororata Road, Hororata known as “The Hororata Hotel”

BETWEEN ALASTAIR JOHN LAWN

(Police Officer of Christchurch)

AND HELENE ANNE FAASS

(Selwyn District Licensing Agency Inspector)

Applicants

AND EDWARD WILLIAM ARNOLD and MARY THERESIA ARNOLD (trading in partnership)

Respondent

AND

IN THE MATTER of applications by EDWARD WILLIAM ARNOLD and MARY THERESIA ARNOLD trading in partnership pursuant to ss.18 and 41 of the Act for renewal of on and off-licences in respect of premises situated at Hororata Road, Hororata known as “The Hororata Hotel”
AND

IN THE MATTER of an application by GARY LESLIE GEMMELL pursuant to s.118 of the Act for a General Manager’s Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Deputy Chairman: District Court Judge D J R Holderness
Member: Mr P M McHaffie

HEARING at CHRISTCHURCH 30 June 2009

APPEARANCES

Mr J H M Eaton – for respondent and applicant for renewal of on and off-licences
Ms H A Faass – Selwyn District Licensing Agency Inspector – applicant
Sergeant A J Lawn – NZ Police – applicant
Mr P N Shaw – on behalf of Medical Officer of Health – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Before the Authority are five applications. Two applications, brought under s.132 of the Act, are made by the Police and the District Licensing Agency Inspector for the suspension, cancellation or variation of the on-licence relating to “The Hororata Hotel”. The grounds for these applications are that the premises have been conducted in such a manner that the licensee partnership has shown that it is not suitable to hold the licences. The grounds primarily involve allegations of alcohol-related road accidents resulting in fatalities; the presence of intoxicated patrons on the premises, and a general lack of understanding of the obligations imposed by the Act and its implementation in relation to management procedures. Two of the remaining three applications are made by Mr Edward and Mrs Theresia Arnold, trading in partnership (“the partnership”) for the renewal of the on and off-licences for “The Hororata Hotel”. There is also an application made by Mr Gary Gemmell, an employee of the partnership, for a General Manager’s Certificate.

[2] The licences fell due for renewal on 16 October 2007. The applications were opposed at that time by the Police and the Agency Inspector because of serious concerns regarding the suitability of the licensee partnership. The partnership subsequently leased the premises to another operator and undertook to have no further involvement in the running of the business. As a result of this development the opposition to the licence renewal applications were not pursued. However, the lessee, Mr Ron Edwards, defaulted on his obligations under the lease. The partnership therefore took over the management of the premises again. This occurred on or about 15 January 2009. The partnership then sought to revive the licence renewal applications. As a result the renewals were again opposed. The Police and the District Licensing Agency Inspector filed the s.132 applications on 5 February 2009.

[3] The premises are situated in Hororata, a small rural settlement west of Christchurch in the Selwyn District. The business trades as a hotel with hours to sell liquor at any time on any day to persons living on the premises, and between 7.00 am and 3.00 am the following day to any other person.

[4] Mr and Mrs Arnold have appeared before the Authority previously as the licensee of the “Chertsey Tavern” situated at Chertsey, north of Ashburton. In decision LLA PH 141-143/2002, the Authority cancelled the on and off-licences in respect of the “Chertsey Tavern” and suspended Mr Arnold’s certificate for a period of six months. This occurred in 2002. The grounds for the cancellation of the licences and the suspension of the manager’s certificate at that time included allegations of intoxicated patrons and licensee unsuitability. Mr and Mrs Arnold are no longer involved with the “Chertsey Tavern”.

The Police

[5] Sergeant Alastair John Lawn is the Officer in Charge of the Canterbury Alcohol Strategy and Enforcement Team. He confirmed that in Christchurch three regulatory agencies namely, the Police, the District Licensing Agency and Community and Public Health, operate actively in a collaborative environment in monitoring and enforcing the Sale of Liquor Act 1989 as well as educating both new and existing licensees and general managers. He explained that the s.132 application by the Police in this case concerns the suitability of the licensee and is based upon a number of incidents alleged to have originated on the premises.

[6] The particulars relied upon by Sergeant Lawn were set out in the application and included details of two separate vehicle accidents resulting in the deaths of patrons shortly after they had allegedly been drinking at “The Hororata Hotel”. Sergeant Lawn produced a series of exhibits in support of both incidents including copies of the Coroner’s authorised autopsy reports; the Coroner’s findings; toxicology reports and Police Alco-Link data. Sergeant Lawn called Constable David Watkins and Samantha Renee Merriman to give evidence confirming statements they made at the time of the fatal accident involving Matthew Bryant. Constable Watkins had been assigned the fatal accident file for Matthew Bryant. Samantha Merriman was Matthew Bryant’s partner at the time of the accident.

[7] At about 4.30 am on 28 January 2007 Matthew Bryant was found by a passing motorist in a vehicle which was upside down in a ditch on Hororata Road. Mr Bryant was the driver and sole occupant of the vehicle. He died at the scene. Mr Bryant had left “The Hororata Hotel” sometime between 3.30 am and 4.20 am. A toxicology report disclosed a blood alcohol level of 178 milligrams of alcohol per 100 millilitres of blood. The accident was the subject of a Coroner’s inquest. Evidence was presented at the Coroner’s hearing that a witness recalled Mr Bryant being in the hotel and showing signs of having been drinking but not appearing to be really intoxicated. Mr Arnold, the licensee, stated that Mr Bryant had arrived at about 2.50 am and was served only one drink of whisky and water before Mr Bryant went outside. The Coroner’s report included the following (at paragraph [7]):

“I endorse the comment of Constable Watkins that any alcohol served in these circumstances was less than desirable but it was not as though he had been there all night drinking and in Constable Watkins view and I agree with him, the serving of that drink was not particularly causative.”

[8] Between 3.30 am and 4.00 am on 20 May 2007 a vehicle driven by Ms Faye Roper, with Mr Michael Gold as a passenger, crashed into a grader parked on Bealey Road. Both occupants sustained serious injuries and died at the scene. Evidence at a subsequent Coroner’s inquest suggested that they had left “The Hororata Hotel” at 3.30 am having arrived there on the evening before the crash at 8.00 pm or 9.00 pm. A toxicology report disclosed a blood alcohol level of 290 milligrams of alcohol per 100 millilitres of blood for Ms Roper, and 264 milligrams of alcohol per 100 millilitres of blood for Mr Gold. The following appears at paragraph [14] of the Coroner’s report in respect of this accident:

“All the indications to me from the evidence that I have before me, is that there is nothing that warrants any criticism of the persons at the hotel.”

[9] Mr Allan Robert Stowell, a scientist employed by the Institute of Environmental Science and Research Limited, gave expert opinion evidence at the request of Police. He commented on the amount of alcohol consumed by Mr Bryant, Ms Roper and Mr Gold over a period of approximately eight hours prior to the respective accidents. He made assumptions that, at the time of the accidents, all three persons had absorbed into their blood all the alcohol they had consumed during their respective drinking periods i.e. from the time they started drinking to the time of their deaths. Mr Stowell also opined that they had cleared alcohol from their blood at rates within the approximate range of 10 to 20 milligrams of alcohol per 100 millilitres of blood per hour. He indicated that most people clear alcohol from their blood at rates within this range. Based on these assumptions Mr Stowell estimated how much each of the three persons were likely to have consumed in order to give rise to their respective post mortem blood alcohol levels. The mid-point of the respective ranges of standard drinks consumed by each person was assessed by Mr Stowell as 16 for Mr Bryant, 18 for Ms Roper and 19 for Mr Gold. Mr Stowell stated it was important to take into account that chronic heavy drinkers are likely to clear alcohol from their blood at higher rates than moderate drinkers. He indicated therefore that if any of the three persons was a chronic heavy drinker, his estimates would probably be too low.

[10] Sergeant Lawn adduced further evidence of seven separate evidential breath alcohol incidents occurring on local rural roads near “The Hororata Hotel” between 27 January 2007 and 21 September 2007. He called six Police Officers to give evidence confirming their statements made at the time regarding the incidents. In each case the drivers involved admitted to having recently consumed alcohol and stated that they had been drinking at “The Hororata Hotel”. Two of the incidents occurred on 27 January 2007 and two on 21 March 2007. The majority of the incidents occurred in the evening or early morning on a Friday or Saturday. Individual breath alcohol levels ranged from 157 to 907 micrograms of alcohol per litre of breath.

[11] Sergeant Lawn also adduced evidence that on 22 July 2007 a patron at “The Hororata Hotel” was unable to use the hotel courtesy vehicle when she requested it. On 23 August 2007 Samantha Merriman made a statement to Police regarding the accident as a result of which Mr Bryant died. She confirmed the account given in that statement in the evidence she gave at the hearing. She said that on 22 July 2007 she had requested a lift home from the hotel at 2.00 am but was informed by the driver, Alice Greenwood, that there was insufficient fuel to run her home. She said that she was offered a lift by Alice Greenwood in her car but was told she would have had to wait until 3.00 am when Alice Greenwood finished her shift. As an alternative Alice Greenwood arranged for another patron to take her home and Samantha Merriman said she accepted that arrangement. She said that she felt that the lack of availability of a courtesy vehicle was contrary to a published undertaking by Mr Arnold in a local newspaper that there was a courtesy vehicle service available.

[12] Evidence was given that on 24 July 2007 at about 2.40 pm the Police visited “The Hororata Hotel” and observed Mr Arnold serve a customer. The duty manager’s sign indicated that Sarah Laidlaw was the duty manager. However, she was found not to be on the premises.

[13] The Authority heard evidence that on 17 August 2007, during a controlled purchase operation, liquor was sold to a minor and the minor was allowed to enter and remain on the premises.

[14] Sergeant Lawn adduced evidence that on 8 December 2007 Mr Arnold sold alcohol without a licence. This did not occur on the hotel premises. Mr Arnold was offered Police diversion. He completed the diversion requirements and the charge was withdrawn.

[15] Sergeant Lawn gave evidence that on 22 March 2009 he was working with Helene Faass visiting a number of licensed premises and special licensed events during the course of that evening. He was not in uniform on the night. Sergeant Lawn said that he entered “The Hororata Hotel” at 12.30 am. On arrival he observed a bus outside and a group drinking out of large bottles. He saw two intoxicated males outside, then entered the front door of the bar. There he spoke to a female with red hair and to Mr Gary Gemmell, who recognised him. He informed Mr Gemmell that males were drinking on the front steps and that most were intoxicated. Mr Gemmell went straight outside. While Sergeant Lawn was at the bar a female patron staggered past him. She was swaying, staggering and slurring her words. The female bar person told the female it was “time to go”. Sergeant Lawn went to the main door where Mr Gemmell was telling people that the Police were on the way. Some people were moving inside at the time. Sergeant Lawn spoke again with Mr Gemmell and he agreed that some people were intoxicated. Mr Gemmell stated that he would be driving the courtesy van after he had closed the bar. Sergeant Lawn suggested that Mr Gemmell should close the bar at that point. Mr Gemmell stated that he would do so and would then take people home. Sergeant Lawn told Mr Gemmell about a young intoxicated male seen to go to the driver’s door of a utility vehicle parked outside the bar. Mr Gemmell identified the male as being from Big Ben Station and said that he would take him home. The Sergeant stated that he and Ms Faass left as it was too unsafe to get details of patrons due to the level of intoxication and the lack of close back up. Sergeant Lawn and Ms Faass then visited the Hog Fest Motorcycle Rally being held nearby. On later passing “The Hororata Hotel” at 1.30 am they observed that the utility vehicle had gone but that the bus was still there.

[16] Sergeant Lawn completed his evidence by producing a Criminal and Traffic History for Mr Arnold showing that he had been convicted of a second offence of drink driving some four months after the Authority hearing in respect of the “Chertsey Tavern” in 2002.

[17] Mr Daniel Wilson is the Vice President of the Patriots Motorcycle Club. He is also the Operations Manager of Ryan Security for Canterbury and Otago. Mr Wilson gave evidence that he was responsible for security for the motorcycle rally being held at a property in Hororata on the weekend 21 to 23 March 2009. He said that he sent an incident report to the Police on 14 April 2009 detailing two incidents on 22 March 2009 which he believed were linked to “The Hororata Hotel”. He said that a house bus with a number of intoxicated occupants, including the driver, attempted to enter the rally site at approximately 1.30 am. Mr Wilson said that the driver told him they had come from “The Hororata Hotel” and that if they could not enter the site they would return to the hotel. Mr Wilson confirmed that the bus eventually departed in the direction of the hotel after some manoeuvring difficulties. Mr Wilson stated that he called the Police about the matter at the time.

[18] Mr Wilson said that a red Toyota min van with three to four passengers tried to enter the rally at 3.30 am on 22 March 2009. The driver, who appeared sober, was wearing a Hororata Pub labelled shirt and said he worked there. Mr Wilson said two of the males who got out of the van were intoxicated and abusive towards him and club members and that they said they had come from “The Hororata Hotel”. Mr Wilson said they eventually departed from the area saying that they would go back to the hotel.

[19] Constable David Watkins and Constable David Shane Pitkethley made a joint duty visit to “The Hororata Hotel” at 9.50 pm on 23 May 2009. Constable Watkins stated that the hotel was very busy, with approximately 100 people in the bar. A band was playing loudly. Constable Watkins noted some of the patrons were members of the Selwyn Rugby Club and wore club shirts and ties. They were behaving loudly and appeared intoxicated. Several were in a dishevelled state. Two were wearing their ties around their heads. Constable Watkins moved outside, and was joined by Constable Pitkethley. While they spoke to people outside Constable Watkins stated that Shane McGinness stumbled out the door in an obviously intoxicated state. Mr McGinness had an unlit cigarette in his mouth and was stumbling around outside looking for a light. He fell over backwards and remained on the ground until being assisted to his feet by others. Constable Watkins said that while outside he observed, through a window, Matiu Rhind pick up another Selwyn rugby player and carry him through the bar while holding him upside down. Constable Watkins said that he returned inside to intervene but was met at the door by several other team members who were exiting with Matiu Rhind. Constable Watkins instructed them to take Matiu Rhind home as he was intoxicated and he stated that Matiu Rhind had his tie around his head and his shirt fully unbuttoned.

[20] Constable Pitkethley confirmed the observations made by Constable Watkins and stated that Shane McGinness was extremely intoxicated. When Constable Pitkethley spoke with Shane McGinness, he (McGinness) was drinking a bourbon pre-mix drink that had just been opened. Constable Pitkethley was unable to understand what Shane McGinness was saying due to his extreme level of intoxication. The Constable stated that Mr Gary Gemmell was present, as was Mr Arnold who he saw working behind the bar. He observed that the duty manager sign showed the name of Ash. Constable Pitkethley stated that Mr Gemmell informed him that Ash was his niece. Constable Pitkethley was unsure if Ash at the time had a General Manager’s Certificate. Subsequent evidence at the hearing confirmed that Ashley Gemmell is the holder of such a certificate. Constable Pitkethley stated that he observed one member of the rugby club who had been sick and was covered in vomit. He was lying on a seat near the door. He said that when he was noticed looking at this person others picked the man up and took him outside. Constable Pitkethley stated that he asked Mr Gemmell outside where he told Mr Gemmell what had been observed inside the hotel. He said that he told Mr Gemmell that it was not good enough and that many of the people inside should not continue to be served as they were intoxicated. Mr Gemmell acknowledged this and said he would keep an eye on it. Constable Pitkethley advised that they would return that night and told Mr Gemmell that he hoped that the problems would be resolved.

[21] Constable Watkins returned later with Constable Harker at 1.30 am. Constable Watkins said they observed several people smoking at the front door, one of whom shouted an obscenity at them as they entered the bar. Constable Watkins observed that the drunken rugby players had gone. He spoke to Mr Arnold and Mr Gemmell and said that Mr Gemmell confirmed that his niece, Ashley, was the designated duty manager. Mr Gemmell pointed her out to Constable Watkins. She was working at the bar. Constable Watkins said he informed Mr Gemmell and Mr Arnold that things were in a better state than earlier. Constable Watkins stated that as he and Constable Harker departed, the latter observed someone walking away from their patrol car. This incident gave rise to separate action and was not relevant to the issues before the Authority.

The District Licensing Agency Inspector

[22] The District Licensing Agency Inspector, Helene Anne Faass, has held the position of Liquor Licensing Inspector for the Selwyn District for six years. She is also a licensed private investigator and has previously been employed by the Police in a front line capacity. She gave evidence relating to the original applications, made by the partnership on 24 September 2007, to renew the on and off-licences. Ms Faass said that she had serious concerns about the suitability of Mr and Mrs Arnold to manage “The Hororata Hotel” responsibly. Acting on information received from Police she opposed the application. The information she received included details of the excess breath alcohol offences alleged to have arisen from drinking at the hotel in 2007; a refusal on 22 July 2007 to take a patron home in a courtesy van; the absence of a duty manager 24 July 2007 and the failure of a controlled purchase operation on 17 August 2007. In decision LLA 1304/2007, the Authority ordered the suspension of the General Manager’s Certificate of the manager on duty at the time of the controlled purchase operation. The employment of the manager in question was terminated soon after.

[23] Ms Faass confirmed that the opposition to the original renewal application was not pursued when Mr Edwards was granted on and off-licences for “The Hororata Hotel” on 24 May 2008. She stated that it was made clear to Mr and Mrs Arnold at that time that they were to have no involvement in the running of the hotel. She said that she was made aware on 12 January 2009 that Mr Edwards had been evicted from the hotel by Mr Arnold who had returned to operate the premises.

[24] Ms Faass gave evidence confirming that, during a routine monitoring of special licences and licensed premises in the Selwyn District on 21 March 2009, she and Sergeant Lawn drove into the car park of “The Hororata Hotel” at 12.20 am. She observed a bus parked in front of the main entrance with six people outside it. Two males were fighting behind the bus. They were loud, abusive and stumbling. They appeared to have been drinking and were showing signs of intoxication. One of the males staggered to a truck in the car park, opened the driver’s door and fell across the seat. The male then got back out and rejoined the group inside the hotel. He had an unopened bottle of beer in his sweatshirt pocket.

[25] On entering the hotel the Inspector and Sergeant Lawn spoke with two persons behind the bar, one of whom was Mr Gary Gemmell. He was named as the duty manager on the sign. During the conversation with Mr Gemmell a female patron was trying to find her bag. She was calling out loudly to the female bar person and was repeating herself. She was observed to have difficulty walking and showed clear signs of intoxication. The Inspector and the Sergeant moved outside with the manager and they observed the group of six people. Ms Faass said that after observing the group, and speaking with Mr Gemmell, he stated he was closing the bar and would take them all home.

[26] The Inspector stated that she and the Sergeant departed the hotel for a further licensing check and observed when passing “The Hororata Hotel” again, some 30 minutes later, that the truck noted earlier was no longer there. They surmised that the driver had not been taken home as had been indicated earlier by Mr Gemmell.

[27] Further enquiries made by the Inspector with the District Licensing Agency, after the 21 March 2009 visit to “The Hororata Hotel”, revealed that Mr Arnold had made s.130 notifications for Mr Gary Gemmell to be acting manager from 23 January 2009 to 13 February 2009 and from 15 February 2009 until 8 March 2009. This indicated to the Inspector that there may have been no certificated manager on duty on the night of the 21 March visit.

[28] The Inspector said that Mr Gemmell filed an application, dated 20 April 2009, with the Selwyn District Licensing Agency for a General Manager’s Certificate. The application was accompanied by a supportive reference from Mr Arnold.

The Respondent and the Applicants

[29] Mr Edward William Arnold confirmed that he and his wife, trading in partnership, hold the on and off-licences in respect of “The Hororata Hotel”. Mr Arnold stated that they live at Leeston. In addition to being a licensee of “The Hororata Hotel”, Mr Arnold is a horse owner and trainer. He indicated that his primary involvement is with horse training. He characterised his working arrangement now as a 60/40 split between horse training and the hotel. He described Mrs Arnold as a silent partner in the running of the hotel and said that she now works elsewhere.

[30] Mr Arnold said that he first entered the hotel industry in 1994. He leased the “Chertsey Tavern” and was the holder of the on-licence and a General Manager’s Certificate. He said that he believed he ran the “Chertsey Tavern” very well. In July 2000 he had purchased the freehold of “The Hororata Hotel” and ran both hotels until March 2002. It was decided at about that time that he would run “The Hororata Hotel” and live there and that Mrs Arnold would manage the “Chertsey Tavern”. That arrangement proved difficult. Mr Arnold confirmed the background circumstances in relation to a number of matters that led to his appearance before the Authority while he was the licensee of the “Chertsey Tavern” which resulted in the six month suspension of his General Manager’s Certificate. At that time the on and off-licences held in respect of the “Chertsey Tavern” were cancelled. Mr and Mrs Arnold continued to operate on and off-licences for “The Hororata Hotel”.

[31] Mr Arnold stated that in December 2005 his son Glen lost his life in a drink drive accident. This had a significant impact upon Mr Arnold and he decided to distance himself from the hotel industry. His son Luke was offered the chance to manage the hotel to allow Mr Arnold to retire from the industry and concentrate on training horses. Luke managed the hotel through until 2007 and Mr Arnold stated that they had not seen a representative from the District Licensing Agency and seldom, if ever, the Police. He personally questioned the Police on one occasion about this and said that the reply given was “Because there is never any trouble”.

[32] Mr Arnold stated that the incidents resulting in the opposition to the renewal applications and the application for suspension of the on-licence all occurred in 2007. His son Luke decided to return to Australia at that time. Mr Arnold decided to leave the hotel altogether and he commenced negotiations to lease the hotel to Mr Edwards. The lease took some time to finalise and Mr Arnold applied for renewal as the licences were about to expire. He said that it was only then that he became aware of the opposition to the renewal applications.

[33] Mr Arnold said that on 10 December 2007 Mr Edwards took over the running of “The Hororata Hotel” and that he heard nothing more about the renewal application or any opposition to it. He said that Mr Edwards leased the hotel through 2008 and did an extremely poor job. Mr Edwards failed to pay service charges and found it difficult to make lease payments. Mr Edwards vacated the premises on 14 January 2009. Mr Arnold said that he then had to return to resurrect the business. He appointed Mr Gary Gemmell as the Operations Manager to run the business on a day to day basis. He said that Mr Gemmell was also employing other qualified managers and that there was feedback from patrons indicating that he was running the premises well.

[34] Mr Arnold gave evidence in response to all the allegations raised by the Police and Agency Inspector at the hearing.

[35] Mr Arnold confirmed that he personally served Matthew Bryant a single whisky at the hotel in the early hours of the morning of his death. He said that Mr Bryant had been a regular at the hotel but had not been there for several months prior to that morning when he had entered the hotel on closing time and requested a whisky and a beer. He was refused the beer as the hotel was closing. Mr Arnold stated that there were no indications that Mr Bryant was intoxicated. He confirmed that he had seen Mr Bryant intoxicated before and that that was not how he presented on this occasion. He stated he would not have served Mr Bryant the whisky if he had shown signs of intoxication.

[36] Mr Arnold said that he spoke with the Police in the early morning of 20 May 2007, shortly after the deaths of Ms Roper and Mr Gold. He confirmed that a full statement he made on 10 June 2007 to the Police regarding the incident was true and correct. He confirmed that it was a busy night with about 120 patrons. There was a full courtesy coach service running and regular announcements were being made regards the availability of lifts home. He remembered seeing and speaking with Ms Roper and Mr Gold throughout the evening and recalled playing pool with Ms Roper. He said that she appeared to be fine. Mr Arnold stated that he had previously seen her when she had been drinking and did not think she was intoxicated on that particular night. He recalled that there had been previous occasions when she had had too much to drink so as to be unfit to drive. He stated that she had however, always been responsible in that regard. Mr Arnold stated that a friend with them had not been drinking and that he had expressed no concerns regarding their safety in driving home. He did not accept that Ms Roper should have been refused service or removed from the premises.

[37] In response to the other drink drive incidents Mr Arnold said that he had not learned of the matters until recently and that he was not able to make any inquiries as to the veracity of statements made by the drivers that they had been drinking at “The Hororata Hotel”. He said it was impossible to know whether the individuals had personally purchased alcohol or whether someone had purchased it on their behalf. He believed that three of the incidents related to the annual motorcycle rally held at Hororata in mid-March. He recalled that a Police Officer came to see him at the time and that special announcements were made in the hotel to remind patrons not to drink and drive. Mr Arnold stated that it seemed that there was a deliberate decision to target the hotel following the two fatal car accidents.

[38] Mr Arnold produced both wage book and bank statement evidence to show that there was a certificated manager present on the evening of 24 July 2007. The wage book showed that a Ms Wanahi was the appointed duty manager. The bank statement produced shows Ms Wanahi was paid for that day. Sarah Laidlaw had worked the previous day. Ms Wanahi was not available as a witness and Mr Arnold’s assumption is that she had forgotten to update the board.

[39] Mr Arnold did not recall being at the hotel on 17 August 2007 when the controlled purchase operation took place. He said that he did not know of the incident until a few days later. He confirmed that the employment of Ms Eade was terminated as a result of the suspension of her General Manager’s Certificate.

[40] Mr Arnold stated it was unfair of the Police to suggest he was unsuitable to hold a liquor licence by reason of him having sold beer at a school fundraising event on 8 December 2007 without a special licence. He said that he participated as it was a community activity, that he was asked by the school to sell cans of beer and that he did not profit from the activity. He accepted that he should have obtained a licence and stated that he was surprised that he was not spoken to about the incident until a week later, despite a Police Officer attending and purchasing a beer from him. He said that he made a donation of $130 to Mid Canterbury Victim Support as a condition of his diversion.

[41] Mr Arnold stated that there was always a courtesy van available on busy nights at the hotel. He refuted suggestions that rides are not available because of lack of fuel but acknowledged that that had occurred on one occasion at which time the duty manager had facilitated alternative arrangements. He said that all patrons at the hotel know very well that there is no problem whatsoever asking management to arrange for rides home.

[42] Mr Arnold confirmed that he was not working behind the bar on the night of 23 May 2009 when the Selwyn Rugby Club visited. He was clearing tables and generally helping out. When questioned he said that one of his duties on the night was to stand at the door to stop liquor being taken outside. He said that Mr Gemmell was also working that night and that Mr Gemmell’s niece, Ashley, who held a General Manager’s Certificate, was the duty manager. Mr Arnold stated that he agreed with the description of events given by Mr Gemmell and stated that Mr Gemmell dealt personally with the Police over the events of that night. Mr Arnold said that others were buying alcohol for the members of the Selwyn Rugby Club but admitted that some of the club members had been served.

[43] When questioned by Mr Shaw about host responsibility, Mr Arnold acknowledged that his published policy on the matter was not typed and had not been revised since it was first issued in 2001. Although the policy is not displayed he said that he did discuss its content with staff on a regular basis. Mr Arnold also admitted that he does not have a copy of the Sale of Liquor Act. He said that his understanding had been that he was only required to notify the appointment of acting or temporary managers. He acknowledged that much had changed in the industry. He confirmed that he had not undertaken any training regarding intervention techniques involving drinkers who appeared to be consuming excessively. He said that he undertook training for his General Manager’s Certificate in 2001 but had allowed the certificate to lapse.

[44] Mr Arnold concluded his evidence with a general statement of his experience in the hotel industry and, more particularly, following his return to operate “The Hororata Hotel” in January 2009. He stated that Mr Gemmell has been doing a very good job as the manager. Mr Arnold said that he is backed by good staff and that a positive atmosphere has been restored with positive feed-back from patrons. He believes he is a fit and proper person to hold on and off-licences. He said that the tragic deaths in 2007 were a real wake-up call but that he has not sensed that the community holds him personally, or the hotel, responsible. He sees the hotel as an institution at the heart of the community and that all involved in its operation are committed to compliance with the Act.

[45] Ms Lesley-Carmen Yanes is a self-employed grape grower and part-time teacher. She gave evidence regarding her friendship and knowledge of Mike Gold and Faye Roper. She confirmed as true and correct the contents of a statement made by her following their deaths. She amplified that statement by expressing her concerns about the state of the road on that particular night. She stated that she is an experienced driver and familiar with the road. On the night of the crash she stated that she had to travel very slowly to avoid the machinery parked at the side of the road.

[46] Ms Yanes said that she knew Faye Roper really well. She had often seen her socially and had observed her both sober and drunk. She said that she was in no doubt that Faye was not drunk on the night of the accident. Ms Yanes was acting as a sober driver that night and said she had had only had two drinks and had offered Mike Gold a ride home as Ms Roper was with some girlfriends. Mr Gold had declined the offer and that he had said that he knew Ms Roper would want to go home and that he would go with her. Ms Yanes stated that if it had crossed her mind that Ms Roper should not have been driving she would not have let her do so and that she would have insisted on driving them home.

[47] Mr Luis Gimeno is a self-employed grape grower. He is the partner of Ms Yanes. He confirmed in his evidence that he was present at the hotel with his partner on 20 May 2007 and that he had similar recollections of the evening. He said that he remembered going outside for a cigarette with Mr Gold at which time Mr Gold confirmed that Ms Yanes had offered him a ride home but that he had said that Ms Roper wanted to drive. Mr Gimeno said that he knew Ms Roper had been drinking and that she was happy and excited about a new job in Queenstown. Mr Gimeno said that he would not have described Ms Roper as being drunk or intoxicated. He said that he had heard an announcement that night that there was a courtesy van available to take people home from the hotel. Mr Gimeno stated that it was normal practice at the hotel for a courtesy van to be available and that Mr Arnold had offered to take him home every time he had been there and had actually driven him home in his own car. He stated that Mr Arnold had also offered him a bed for the night in the past.

[48] Mr Gary Leslie Gemmell is the Operations Manager of “The Hororata Hotel”. He was born and bred in “The Hororata District. His early work experience includes both business and farming. He stated he has management experience gained over several years through running a tearoom in Darfield in the 1980s and later a floor covering business and a ‘Kentucky Fried Chicken’ outlet in Christchurch. More recently he has worked in both mixed crop, sheep and beef farming. He said that he had worked in the hotel industry as a barman in the early 1990s for several years, at the “Colgate Tavern”, working there at weekends for three years.

[49] Mr Gemmell believes he is a fit and proper person to hold a General Manager’s Certificate. He produced an Amended Result Notification issued by the Christchurch Polytechnic Institute of Technology on 6 May 2009 confirming that he had passed two modules of training for the Licence Controller Qualification. Mr Gemmell has yet to produce evidence of attaining the Licence Controller Qualification. Mr Gemmell also produced copies of six recently dated supportive references as to his character. The references came from a range of people who have been involved with him primarily in a business capacity over a period of years.

[50] Mr Gemmell stated that he been appointed as a temporary manager at “The Hororata Hotel” before applying for a General Manager’s Certificate. He said when he went to pay the appropriate fee for the certificate he was advised by Ms Faass that she would be opposing the application following the motorcycle rally incident on 21 March 2009.

[51] Mr Gemmell stated that he was working at the hotel that night. He said that shortly after midnight a bus arrived. He believed that it came from the nearby motorcycle rally site after being refused entry there. He stated that people from the bus tried to enter the hotel but were refused entry as they were intoxicated. He said he was working behind the bar when Sergeant Lawn and Ms Faass arrived. He said that a local patron ran outside with a pre-mix drink (RTD) in his hand and that he recalled Sergeant Lawn saying that this “did not look good”. Mr Gemmell said that he had instructed the bar staff earlier that the hotel was closing at 12.30 am, that he was going to be taking patrons home in the courtesy coach and that he had collected car keys from patrons.

[52] Mr Gemmell stated that he was present on 23 May 2009 when the Selwyn rugby team visited the hotel. He stated there was a birthday celebration for an 18 year-old in the hotel that night and that it was a busy night. He said the members of the team arrived no more than 10 minutes prior to the arrival of the Police. He stated that there was no standing arrangement between the club and the hotel but that club members did drop in from time to time. Mr Gemmell said that Selwyn Rugby Club members did not regularly arrive at the hotel on a Saturday night.

[53] Mr Gemmell stated that the Police Officers indicated to him that there were three males who ought to be removed. He stated that he inquired as to whom the officer was talking about and that three players were pointed out to him, who he then removed. He said that he was not actually serving behind the bar that night and had been driving the courtesy van. He stated that he knew that there were a number of sober drivers accompanying the group and was 100 percent confident that the three men who were removed had not personally been served alcohol whilst on the premises. He went on to say that the remaining members did not stay too late and that when the Police returned around midnight everything was in order with no complaints from anyone. Mr Gemmell stated that nothing was discussed directly with him or any other member of staff as a result of the incident and no charges were laid.

[54] Mr Gemmell stated that felt the opposition to his General Manager’s Certificate was unfair. He said the patrons of the hotel have said to him that he is “the best thing that has happened” to the hotel. He also said that Jennifer Swift of the Hospitality Association of New Zealand (HANZ), who is apparently based in Nelson, had made a recent visit and indicated that in her view he could not be doing anything better. Mr Gemmell found her very helpful in terms of his responsibilities as a General Manager. When asked if HANZ was aware that the hotel was subject to a public hearing he said they were. However, no representative of the HANZ was present at the hearing. Such a presence at public hearings is not an uncommon practice.

[55] Alice Greenwood is the holder of a General Manager’s Certificate and has been employed as a general manager at “The Hororata Hotel” since 2001. She stated that she was working at the hotel on the night of 21 July 2007, that it was busy and that she was driving the courtesy van. She stated that Samantha Merriman was the only person she was unable to drive home that evening because there was not enough fuel in the vehicle. She confirmed that she offered Ms Merriman a lift home at the end of her shift but that she had declined the offer as she wished to go straight home. Mrs Greenwood said that she then arranged for Sheree Ackroyd, a designated sober driver for another group, to take Ms Merriman home. She said that in her experience the low level of fuel for the courtesy van that night was a “once only” event that had occurred because of the very busy weekend.

[56] Mr Tony Goddard is an employee at Prime Foods in Hororata. He confirmed that he had previously made a statement to the Police of his finding Matthew Bryant at the scene of the accident on 28 January 2007. He said that he was able to provide further clarification in relation to his opinion as to Mr Bryant’s state prior to the accident. Mr Goddard originally told the Police there was a sign of Mr Bryant having been drinking but he explained that such a comment was related more to Mr Bryant’s location than his condition. He said that Mr Bryant was certainly not wobbly on his feet and that he was definitely coherent and not slurring his words and that he did not believe that Mr Bryant’s eyes had been glazed. Mr Goddard said that he would describe Matthew Bryant as being as “good as gold” at the time and that he certainly would not have described him as intoxicated. Mr Goddard said that he himself was sober and that he was surprised to learn that the blood alcohol level was as high as it was as Mr Bryant appeared to him to be under the drink drive limit.

The Submissions

[57] Sergeant Lawn submitted that “The Hororata Hotel” has been run in a manner which demonstrates that the licensee partnership is not suitable to hold the privilege of a licence to sell liquor to the public. He emphasised that the evidence adduced at the hearing covers three separate timeframes linked by one common thread namely the licensee, Mr Arnold. In respect of the first timeframe (2002) Mr Arnold was a director and shareholder of Kyle Road Holdings Limited which held the on and off-licences in respect of the “Chertsey Tavern”. Sergeant Lawn submitted that in its decision in Kyle Road Holdings Limited (LLA PH 141-143/2002) the Authority looked seriously at cancelling Mr Arnold’s General Manager’s Certificate and did cancel the on and off-licences in respect of the “Chertsey Tavern”.

[58] Sergeant Lawn submitted that during the second timeframe (2007) there were a number of incidents which appeared in the Police Alco-Link link data for “The Hororata Hotel”. The nature of the incidents, which included fatalities and other drink driving offences, lead Sergeant Lawn to submit that, on the balance of probabilities, the patrons involved were likely to have been showing signs of intoxication when they left “The Hororata Hotel”. He referred to the decisions in Clary 2002 Limited (LLA PH 825/2004) and Balhae Limited (LLA PH 223-230/2006) in relation to blood alcohol levels and consequent probable signs of intoxication. Sergeant Lawn submitted that there were similarities in relation to the deaths of Mr Bryant, Ms Roper and Mr Gold. They had all been drinking at the hotel, they were showing some signs of having consumed alcohol and they were all known to be heavy drinkers by locals and by the management of the hotel. While commending the steps the hotel management had taken in introducing a courtesy vehicle service, Sergeant Lawn also strongly argued that little, if any, intervention was in place to ban or control intoxication on the premises.

[59] Further matters in the 2007 timeframe relied upon by the Police, not related to driving incidents, included Mr Arnold selling liquor whilst not authorised to do so and that liquor was sold on the premises to a minor.

[60] The third and most recent period of concern for Police relates to events following the applications for renewal of the off and on-licences in early 2009, soon after Mr Arnold had returned to “The Hororata Hotel” following his absence while Mr Edwards was running the hotel. The Police regard as serious the fact that on two separate occasions in mid March 2009 intoxicated patrons were found to be on the premises. Sergeant Lawn submitted that Mr Arnold had an involvement on both occasions because he had appointed Mr Gemmell on 21 March 2009 to be the duty manager and he himself was present on the evening of 23 March 2009.

[61] In her submission Ms Faass reiterated concerns that there is a legacy of problems and a documented history of suitability issues with regard to the applicant. She further submitted that Mr Arnold, although not always in attendance at “The Hororata Hotel”, is nevertheless the alter ego of the licensee and that his work practices and attitude dictate the overall tone. The Agency Inspector contends that Mr Arnold has failed to learn from his previous mistakes and that nothing has changed. She has specific concerns regarding the lack of knowledge shown by Mr Arnold when managing the appointment of duty managers and more so recently when appointing Mr Gemmell as operations manager of the hotel. She submitted that Mr Gemmell, although he has recently completed related unit standard qualifications, has since displayed poor judgement and knowledge in managing the hotel and that he is not sufficiently experienced to be granted a General Manager’s Certificate. She submitted that there will be little change to the way the hotel is operated whilst Mr Arnold continues to be involved.

[62] In his submissions Mr Eaton challenged several propositions advanced by the Police and submitted the Authority cannot safely equate a positive drink driving result test with proof of intoxication under the Act. He referred to the judgment of the Court of Appeal in Parsons & Ors v Farmers Mutual Insurance Association [1972] NZLR 966 and the following observation (at p.972) of Richmond J:

“... a person may be materially affected by alcohol for certain purposes, such as driving a car, yet may not have reached the stage where the ordinary person would describe him as intoxicated.”

[63] Mr Eaton referred to the Authority’s decision in Clary (supra). In that decision the Authority was critical of the reliability of evidence from a last drink survey even when that evidence was coupled (as in the present case) with evidence from officers in charge of the particular drink driving cases. Mr Eaton submits that, as was the case in Clary, there is no direct evidence in this case that any of the drivers were sold or supplied alcohol or that if they were sold or supplied alcohol that the person was intoxicated and known by the supplier to be intoxicated. Mr Eaton submitted that in this case there is no direct evidence that the licensee or manager allowed any of the drivers to become intoxicated on the premises. He emphasised that the Authority indicated in Clary (at paragraph [56]) that we would be prepared to accept that a patron who exceeded a breath alcohol limit of 1000 micrograms of alcohol per litre of breath or a blood level of 200 milligrams per 100 millilitres of blood was probably intoxicated. Mr Eaton then invited us to find that no person in the present case was intoxicated. We are unable to make such a finding in relation to Ms Roper and Mr Gold. It was ascertained, after the accident, that they each had a blood alcohol level in excess of 200 milligrams of alcohol per 100 millilitres of blood .

[64] Mr Eaton submitted that the evidence of Dr Stowell does not support the allegations made by the Police. He argues that the Authority cannot safely proceed on a general assumption that a particular blood level equates to proof of intoxication to support an allegation under s.166(1) which provides as follows:

166 Sale or supply of liquor to intoxicated person

(1) Every person commits an offence and is liable to the penalty set out in subsection (4) who, being the licensee or a manager of any licensed premises, sells or supplies liquor to any other person who is already intoxicated.

Mr Eaton rightly submits that intoxication must be proved on the balance of probabilities. He relies upon the direct eye witness accounts given in evidence. He contends that this evidence indicates that the drivers in relation to both the fatal accidents were not intoxicated.

[65] In respect of the other drink driving incidents Mr Eaton submitted that there was insufficient evidence to establish that the number, over an eight month period, was unusual or of concern. He pointed out that there was no comparable data for a valid assessment and noted that three of the incidents took place during the Hog Fest rally in March 2007. He also submitted that it was significant, and of greater relevance, in considering suitability or suspension, that there had been no drink driving incidents since September 2007.

[66] In respect of the two occasions where intoxicated persons were present on the premises Mr Eaton submitted that they were similar in the sense that both (Hog Fest rally, 22 March 2009 and the Selwyn Rugby Club, 23 May 2009) involved unexpected and uninvited arrivals at the hotel on busy nights which occurred shortly before the Police arrived. He submitted that the incidents are not indicative of an ongoing problem. Mr Eaton emphasised that the rugby club group was initially allowed to enter on the night in question because players had been well behaved on a previous visit. Mr Eaton invited us to consider that, if the Selwyn rugby team had been associated with the hotel and had regularly behaved there in a similar fashion, then the Authority might be inclined to uphold enforcement action.

[67] Mr Eaton suggested that in both incidents the evidence established that the hotel staff acted promptly and appropriately when they became aware of matters. He submitted that the hotel management worked closely with Police to have the intoxicated persons removed and also to arrange transport for other persons within the hotel. Mr Eaton submitted that no person from the Hog Fest bus had been drinking at “The Hororata Hotel” at any time and that no persons from the bus had been permitted entry to the hotel. He contended that the female from the Hog Fest bus, described as staggering, was not drinking at the time and that there was no evidence as to when she had last consumed alcohol or whether she was personally served. Mr Eaton submitted that the response of bar staff that she should leave was appropriate. When referring to the rugby club visit Mr Eaton submitted that the players apparently arrived in “dribs and drabs” and that clearly the majority were not intoxicated with only perhaps three persons who might have been described as being in that condition. He submitted that there was no evidence that any of those three were served or consumed liquor on the premises. He submitted that the player with vomit on his clothing was not sick at the hotel, and did not drink there. Mr Eaton suggested that the real complaint with the rugby club visit was that three particular players had not been removed before the Police arrived. Mr Eaton emphasised that Mr Gemmell visited the rugby club after the incident and that he should be commended for such an approach.

[68] Mr Eaton acknowledged that there was “a shortcoming on behalf of Mr Arnold” regarding s.130 notifications. He submitted that it resulted from a misunderstanding. The submission was that Mr Arnold understood that notification was necessary in relation to a temporary or acting manager but not if the person was a fully qualified manager.

[69] Mr Eaton submitted that ongoing education would be the preferred manner of addressing such a concern. He also submitted that further education was appropriate to address any matters concerning the need for updating the Host Responsibility Policy. He suggested a similar approach if it is the considered view of the Police and the Licensing Inspector that a licensee with first hand involvement in the running of the hotel should complete an appropriate course in server responsibility.

[70] Mr Eaton submitted that Mr Arnold was open and frank with the Authority in acknowledging that his medium to long term intention is to sell “The Hororata Hotel”. It is his intention is to re-establish the reputation and good business of the hotel in order that he can achieve a sale. Mr Eaton submitted that if the licences are not renewed, or if Mr Arnold faced a lengthy suspension, then he would be forced into a fire sale resulting in a substantial financial loss.

The Authority’s Decision and Reasons

[71] Of the several issues to be determined we will deal first with the two fatal traffic accidents and the drink drive apprehensions. We will then consider the two alleged incidents of intoxication on the premises arising from the monitoring visits. We will then turn to the single incident resulting in an unauthorised sale of alcohol and the concerns regarding perceived management deficiencies at “The Hororata Hotel”.

[72] In Clary 2002 Limited (supra) the Authority said this:

“In assessing the weight of evidence concerning the traffic matters we are conscious that the allegations must be proved on the balance of probabilities. In respect of allegations of serving intoxicated patrons or allowing them to remain, the standard of proof required can be elusive. Not only is the assessment of intoxication a subjective test, but there are elements of ‘mens rea’ in each offence.”

[73] In the two cases involving fatalities we heard evidence from several parties including management on their perceptions as to the state of the drivers involved. All the witnesses who gave evidence in relation to the fatal accidents acknowledged that the drivers were known to be heavy drinkers. However, the evidence was that on the nights in question those who observed the drivers at the time had no specific concerns. Matthew Bryant was at the hotel for one drink only shortly before his tragic accident. The Coroner’s subsequent report reflected the less than desirable circumstance of the single drink but went on to record that the serving of it was not particularly causative. The Coroner’s report in relation to the other fatal accident recorded that no evidence presented during the Inquest warranted any criticism of staff at the hotel. In these circumstances we are not satisfied that it has been proved on the balance of probabilities that the persons involved were demonstrably intoxicated when at the hotel to the point where that was reasonably apparent to hotel staff. In reaching this view we have had regard to what the Authority said in a case decided after Clary namely, Tanya Jane Surrey v The Bullock Bar Limited LLA PH 938-940/2007. In its decision in that case the Authority expanded upon what had been said in Clary and observed:

“... a person is intoxicated when they demonstrate an obvious disturbance or impairment of their mental or bodily faculties or functions. The issue is that they must be demonstrably intoxicated, before the Act requires a licensee or member of staff to refuse service, or remove the person, or take them to a place of safety, or generally apply host responsibility principles. It is accepted that sometimes an intoxicated person will not show any outward signs of intoxication. However licensees and managers are expected to be monitoring such a person well before that happens.”

[74] We do not accept Mr Eaton’s submission that Police, as a result of the two fatal accidents, targeted “The Hororata Hotel”. The first two of the seven other drink drive incidents occurred the night before the first fatal accident. The next three occurred some six weeks later and two days prior to the second fatal accident. The final two incidents took place over one month later. It is quite reasonable to expect that Police would conduct routine checks in such a rural area as well as mounting a more concentrated effort at the time of the Hog Fest which resulted in three of the seven incidents. Clearly the statistics would show that such action was warranted. Mr Eaton invited the Authority, in considering the matter overall, to note that there have been no drink driving cases since September 2007. However, we do note that this date approximately coincides with the original opposition to Mr Arnold’s applications for renewal of the licences and his departure from the hotel at the commencement of the lease to Mr Edwards.

[75] We are satisfied that there is no direct evidence that the licensee or manager allowed any of the drivers, who claimed that their last drink was consumed at “The Hororata Hotel”, to become intoxicated on the premises. Apart from the evidence from the Police for each evidential breath test, and each accompanying check list, there is little or no independent evidence that any of the drivers in fact appeared to be intoxicated, and were demonstrably in that condition. None of the seven drivers exceeded a breath/alcohol limit of 1000 micrograms per litre of breath. The Authority is unable safely to decide on the evidence that the drivers were apparently intoxicated while at, or prior to leaving, the hotel. However, the Authority is satisfied that other evidence we heard in respect of various incidents enables us to decide whether the premises have been properly managed.

[76] During the course of two separate monitoring visits to “The Hororata Hotel” in early 2009 intoxicated persons were found on the premises. Pursuant to s.168 of the Act it is an offence for a licensee or a manager to allow any intoxicated person to be or to remain on licensed premises. Mr Gemmell was present on both nights and Mr Arnold on the second night. Although Mr Gemmell is not the holder of a General Manager’s Certificate he was responsible for the day to day operation of the hotel and has been appointed on occasions by Mr Arnold under s.130 of the Act. He was the designated duty manager on the first night. However, this appointment had not been correctly notified. Both nights were described as busy. On each night there were unexpected visits by groups of persons who had been drinking prior to their arrival. On both occasions intoxicated persons were allowed to enter the hotel and some were permitted to remain for appreciable periods of time.

[77] On the first night (22 March 2009) Sergeant Lawn, a very experienced Police Officer, assessed several persons outside the premises to be intoxicated and he encountered one intoxicated female inside. She was soon after informed by staff that it was time to leave. Sergeant Lawn was accompanied by Ms Faass who confirmed his observations and particularly those relating to the female patron inside. Ms Faass described her as being clearly intoxicated. She noted that Mr Gemmell was the designated duty manager and confirmed that he took prompt action. However, this was only after concerns were expressed to him about what was happening outside the hotel.

[78] On the second night (23 May 2009) Police found Selwyn Rugby Club players inside the hotel. They were behaving loudly and appeared intoxicated. During the course of the visit Police observed a number of incidents involving intoxicated players both inside and outside the hotel and drew their concerns to Mr Gemmell’s attention. Both attending Constables observed intoxicated players gathered around a bar barrel/table. There were drinks on top of the table.

[79] Having regard to the evidence which we accept, the Authority is satisfied that some members of both groups did not avail themselves of the facilities of “The Hororata Hotel”. However, we find that on one occasion at least some of the visitors who were demonstrably intoxicated were permitted to enter the premises prior to the arrival of the monitoring personnel. In the case of the Selwyn Rugby Club players there was evidence, which we accept, of observations made by Police Officers indicating that alcohol had been purchased and consumed by intoxicated members of the team. We are satisfied that on both visits it was clear that management was generally unaware of the activities going on immediately outside (and some inside) the hotel until the understandable concerns of the Police personnel were drawn to the attention of hotel staff. The Authority has reached a clear view on the evidence that there were intoxicated persons present on the premises who were allowed to remain there for an appreciable period. In these circumstances the Authority is satisfied that that grounds for a suspension order have been established and that, having regard to the previous history of the licensee, it is desirable that an order be made.

[80] We have significant concerns about the management of “The Hororata Hotel”, as disclosed by the evidence, and particularly the apparent lack of knowledge on the part of Mr Arnold in relation to the administration and requirements of the Act. The Authority has been driven to conclude that Mr Arnold appears not to have learnt from past experiences. He remains unsure of the requirements regarding notification of the appointment of general managers, despite significant enforcement action over similar omissions in 2001. In Kyle Road Holdings Limited (LLA PH 141-143/2002) the Authority suspended Mr Arnold’s General Manager’s Certificate for the then maximum period of six months. Grounds for cancellation were deemed to exist at that time however, because of the company structure, cancellation was not ordered. Within four months of that hearing a second conviction for driving with an excess breath alcohol level was recorded against Mr Arnold. The Authority cannot overlook that “The Hororata Hotel” failed a controlled purchase operation in August 2007. While it was not a particularly serious offence, and was dealt with by diversion, the Authority must nevertheless take into account that Mr Arnold sold liquor without a licence at “The Hororata Fair in December 2007 soon after he had leased out “The Hororata Hotel”. He returned as the alter ego of “The Hororata Hotel” in January 2009. Having regard as well to the matters which have arisen since his return to the hotel we are not yet satisfied that Mr Arnold has a sufficient understanding of the requirements of the Act to manage “The Hororata Hotel” effectively despite his significant experience in the industry. Our views accord with those expressed by the Authority in J M Clark (LLA 1169/99):

“A liquor licence is a privilege. It may colloquially be regarded as a “package deal”. Both the burdens and the benefits run with the licence. Mr Clark as a licensee must either accept those burdens and control the sale and supply of liquor in a satisfactory manner, or he will not continue to enjoy the privilege. Either the licensee can manage the premises and on-licence satisfactorily, or he cannot.”

[81] We do not overlook that Mr Arnold continues to provide free courtesy coaches to the patrons of “The Hororata Hotel” and that he has provided such a service for quite some time. Such an initiative is to be applauded. However, it is also necessary to recognise that such a courtesy vehicle service ought not to be seen as a substitute for effective management of busy licensed premises. A key component of such management is the responsible monitoring of the consumption of alcohol by patrons to ensure that they do not become intoxicated. The provision of lifts home and the removal of car keys from patrons for safe keeping until the morning is but one of many strategies that must be adopted to reduce the harm resulting from the sale and consumption of alcohol.

[82] Pursuant to s.4(2) of the Act the Authority must exercise its jurisdiction, powers and discretions in the manner that is most likely to promote the object of the Act as set out in s.4(1) which provides as follows:

4. Object of Act

(1) 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, so far as that can be achieved by legislative means.

[83] We have reached the clear view, for the reasons we have endeavoured to set out above, that the renewal of the licences for “The Hororata Hotel” should be for a limited period. In the exercise of the discretion available to the Authority under s.23(3) of the Act we therefore make the following orders:

• [a] On-licence number 059/ON/21/2004, held by the partnership, is renewed for a period of 12 months from the date of this decision. This gives Mr Arnold 12 months to remedy the concerns raised in this decision and by the Police and the Agency Inspector, particularly those related to Mr Arnold’s lack of personal knowledge and general understanding of the Act and its requirements. Further reports will be called after 12 months. If there are no concerns or issues to report at that stage it may be that a further renewal could be granted on the papers. However, if the concerns and the issues discussed in this decision remain alive there may well be a need for a further public hearing.
  
• [b] Off-licence number 059/OFF/14/2004, held by the partnership, is similarly renewed for 12 months from the date of this decision.
  
• [c] On-licence number 059/ON/21/2004, held by the partnership, is suspended for two days from 7.00 am on Friday 25 September 2009 until 3.00 am Sunday 27 September 2009.
  
• [d] The application by Gary Leslie Gemmell for a General Manager’s Certificate is adjourned for a period of 12 months beginning 5 August 2009. During that time Mr Gemmell is to provide evidence that he is the holder of the Licence Controller Qualification. If there are no issues to report at the conclusion of that period the certificate may issue on the papers. We see no reason why Mr Gemmell cannot be appointed as a temporary or acting manager during the last six months of the adjourned period, provided the provisions of s.128 or s.129 of the Act are complied with.
  

DATED at WELLINGTON this 31st day of August 2009

Judge D J R Holderness
Deputy Chairman

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