Kalken v Fells Hotels (2003) Limited [2009] NZLLA 233 (18 March 2009)

New Zealand Liquor Licensing Authority

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Kalken v Fells Hotels (2003) Limited [2009] NZLLA 233 (18 March 2009)

Last Updated: 3 March 2010

Decision No. PH 233/2009

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.132 of the Act for suspension or cancellation of off-licence number 019/OFF/2/2003 issued to FELLS HOTELS (2003) LIMITED in respect of premises situated at 51 Rora Street, Te Kuiti, known as "Te Kuiti Hotel"

BETWEEN ROBERT JOSEPH VAN KALKEN

(Police Officer of Te Kuiti)

Applicant

AND FELLS HOTELS (2003) LIMITED

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr P M McHaffie

HEARING at HAMILTON on 4 March 2009

APPEARANCES

Senior Sergeant R J Van Kalken – NZ Police – applicant
Mr D J Allen – for respondent
Mr R G Henderson – Medical Officer of Health – to assist

ORAL DECISION OF THE AUTHORITY

[1] This is an application under s.132 of the Act for the suspension or cancellation of an off-licence issued to Fells Hotels (2003) Limited, in respect of premises situated in Te Kuiti, known as "Te Kuiti Hotel".

[2] The hotel has been in existence for a number of years. It provides the normal facilities such as a TAB, gaming machines, and a bar. More importantly, it has an off-licence which is situated approximately 30 metres away. The two premises are separated by a large carpark.

[3] The ground for the application is that the licensed premises have been conducted in breach of s.155 of the Act. Section 155 makes it an offence for any licensee or manager (or indeed employee), to sell or supply liquor to any person who is under the age of 18 years. The company has been the subject of three previous controlled purchase operations.

[4] The evidence shows that the first controlled purchase operation took place on 10 June 2007. This was a Friday evening. On that occasion 12 premises were tested and the hotel was one of seven premises that sold liquor to the 17-year old female volunteer. On that occasion all the premises were issued with a formal Police warning.

[5] As Mr Henderson, representing the Medical Officer of Health, pointed out, the fact that a warning was given on this occasion, gives a slightly reduced status to the illegal sale in terms of a prior record.

[6] The second operation took place on Friday 7 December 2007. On that occasion 10 premises were tested and the hotel was the only premise to fail. Furthermore the sale on that occasion was made to a 14 year old female volunteer. A four pack of RTDs was purchased. The company accepted that a suspension was appropriate. The off-licence was suspended for two days over a weekend.

[7] There was a third controlled purchase on 25 July 2008. On that occasion the company was successful in rejecting the opportunity to make a sale. No details were received about this incident. The representative of the company felt that they had passed another controlled purchase operation, but there was no record of such an operation.

[8] The present application is brought on the ground that on Thursday 4 December 2008 a controlled purchase operation was conducted by the Police, and supported by the Health Board. The way in which the operation was carried out appears to have been in line with ALAC’s controlled purchase operation guidelines.

[9] The young volunteer who was born on 8 April 1991, and was 17 years and eight months at the time of the operation, was able to purchase a four-pack of RTDs. What is purchased is of some significance in our view. This is because if a purchase is made of items that are popular amongst young people, then that should place the salesperson on heightened alert.

[10] It so happens that on this particular occasion the salesperson was a Maria Wilson. When she filed her job application she had failed to disclose previous convictions. There were quite a number of such convictions. When it was discovered that she had falsely completed a job application form she was duly dismissed.

[11] As a consequence we did not hear from the salesperson as to why the system had failed. On the other hand we did not hear from the volunteer either. The company through its counsel Mr D J Allen, having received disclosure, gave notice that the fact that the sale had taken place would not be disputed. He advised that the sole issue would be in mitigation of any sanction to be imposed by the Authority.

[12] This concession suited the Police who were anxious to protect the identity of the minor at any event. On the other hand the fact that the minor was not present has not assisted in determining such issues as the way in which the purchase was made.

[13] We therefore act on the basis that there have now been three illegal sales, one of which has resulted in a warning, and one which has resulted in a two day suspension of the off-licence. There has also been an occasion where a sale was refused.

[14] The first issue is that there was no duty manager present in the bottle store. Pursuant to s.115(1) of the Act, at all times when liquor is being sold or supplied to the public on any licensed premises, a manager must be in duty. Section 115(2) states:

"115 Manager to be on duty at all times and responsible for compliance

(2) A manager on duty in respect of licensed premises is responsible for—

(a) The compliance with and enforcement of—

(i) The provisions of this 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."

[15] The current licensing thinking (as confirmed by several of our decisions), is that it is not possible for a manager to be responsible for compliance and enforcement of the Act, unless the manager is physically present. It would be an even greater advantage if the manager is able to observe the point of sale.

[16] If the duty manager is in the hotel, (as happened in this case), he or she is unable to see what is happening in the bottle store. In such circumstances there is in our view, a breach of s.115 of the Act.

[17] It has been explained to us that the hotel has always operated on the basis of a belief that as long as a manager is present, then the law is respected. Both the current general managers of the business are now fully aware of our expectations. It is clear to us that one of the reasons that the business has such a poor record is the lack of a certificated person on duty and responsible for the hotel’s compliance with the Act.

[18] Discussions were held between the Police and the company after the sale had been made. Central to those discussions was the large carpark that is owned by the company. It is clear that there are many people who either purchase liquor from the bottle store or bring liquor into the carpark area.

[19] This carpark is owned by the company and is part of the town’s liquor ban area. The issue which was brought up by the Sergeant is the hotel’s responsibility to police and even enforce the liquor ban. The hotel has a responsibility to prevent patrons leaving the premises with liquor. If they do not do so then they have breached the Act and can be brought before the District Court or the Authority. Management has a duty to prevent intoxicated people from entering the premises. There is a similar duty to prevent patrons from leaving the premises having reached a level of intoxication whereby they have lost control of one or more of their faculties. Those are issues that did not come before us in any formal way.

[20] We believe that the Police carry the main responsibility of monitoring and enforcing the liquor ban. We accept that the licensee does not have the power to remove liquor from persons who have breached the ban or indeed to apprehend them. However, they do have power of trespassing them from their property. We believe that the company has the right in the first instance to request that people move on. In the second instance the company has the right to trespass such people to avoid the type of problems that were referred to.

[21] The company is entitled to some credit for undertaking to provide judder bars in the car park. This is a first step towards the ultimate safety of people using the area. These were peripheral matters that came before us. It may be necessary for such issues to be traversed again when the licences fall due for renewal in the middle of next year.

[22] We return to the application itself. In our view an appropriate suspension period would be seven days. There are a variety of reasons for a suspension of that length. For example we note that there were 11 premises that were visited on the night in question, and only two failed the operation. We note the items that were purchased were RTDs. We have not heard from the salesperson. Since the incident the signage has been increased and made more sophisticated. All members of staff attended a training course in late January and the company is to be commended for that.

[23] The issue is the credit that should be given to the company for the cooperative way in which it has approached the hearing. Having considered that matter our decision is that off-licence number 019/OFF/2/2003, issued to Fells Hotels (2003) Limited, will be suspended for five days commencing at 9.00 am on Sunday 12 April until 9.00 am on Friday 16 April 2009.

DATED at WELLINGTON this 18th day of March 2009

B M Holmes
Deputy Secretary

Te Kuiti Hotel.doc(aw)