Ure v Steel [2009] NZLLA 317 (1 April 2009)

New Zealand Liquor Licensing Authority

[Index] [Search] [Download] [Help]

---

Ure v Steel [2009] NZLLA 317 (1 April 2009)

Last Updated: 15 March 2010

Decision No. PH 317/2009

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 cancellation of General Manager’s Certificate number GM 187/2001 issued to SUZANNE JOY STEEL

BETWEEN JAMES HARVIE URE

(Police Officer of Te Anau)

Applicant

AND SUZANNE JOY STEEL

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at INVERCARGILL on 16 March 2009

APPEARANCES

Senior Constable G B Pay – NZ Police – applicant
Ms R J Hopkins – respondent
Ms L M Grace – representing Medical Officer of Health – in attendance

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Ms Suzanne Joy Steel was granted a General Manager’s Certificate on 8 November 2001. Until recently there have been no concerns about her ability to manage licensed premises. On 20 January 2009, the Authority received an application for the cancellation of the certificate. The ground for the application was that Ms Steel failed to conduct licensed premises in a proper manner.

[2] At the commencement of the hearing the Senior Constable advised that on reviewing the evidence, cancellation of the certificate was not now being sought. However, the Police believed that there was sufficient evidence of misconduct to justify a suspension order.

[3] The particulars in support of the application referred to an incident on 15 October 2008, in which two young men were permitted to consume three bottles of wine over a light lunch. It was alleged that on leaving the licensed premises the two intoxicated men created mayhem in the township of Te Anau, to the distress of many of the inhabitants. Ms Steel was the manager on duty during the relevant time.

[4] Ms Steel was represented by Ms R J Hopkins. At the commencement of the hearing she sought an order dismissing the application. She argued that the evidence was hearsay and should not be admitted. She said that there were gaps in the evidence that could have led to an inference that intoxication had resulted from the men consuming liquor after leaving the café. She submitted that in such circumstances, any order against her client would be blatantly unfair and unjust.

[5] Ms Hopkins based part of her argument on a statement made by a Police witness that it was believed that Ms Steel had disregarded her responsibilities as a duty manager, by allowing the patrons to become intoxicated on the premises, and also by allowing them to remain on the premises in an intoxicated state. She argued that there was no proof that Ms Steel had breached the respective provisions of the Act.

[6] We noted that much of the evidence was to come from Ms Steel’s own statement to the Police. Furthermore, the allegation in the suspension application was a failure to conduct licensed premises in a proper manner. The application was not necessarily based on two breaches of the Act. We suggested that the focus of the inquiry might well centre on Ms Steel’s decision to sell a third bottle of wine to the two men. The application to dismiss the proceedings was accordingly declined. There was no request for an adjournment.

The Hearing

[7] We have already traversed the evidence in a related case involving Ms Steel’s daughter (Ms K J Goodwin) who was the waitress at the café when Ms Steel was the duty manager (see LLA PH 281/2009). Our summary of the evidence is as follows.

[8] The incident occurred at the “Olive Tree” in Te Anau on 15 October 2008. The “Olive Tree” is a licensed café. Ms Steel was the duty manager of the premises between 8.00 am and 4.00 pm. Her daughter Ms K J Goodwin commenced work as a waitress at midday. Ms Goodwin had appeared previously before us seeking a General Manager’s Certificate. Her application had been adjourned for some nine months to give her the chance to show more maturity. She was effectively on ‘probation’ when the incident occurred.

[9] Shortly after midday two young men in their early twenties entered the cafe. Both Ms Steel and Ms Goodwin knew one of them. They had lunch (a burger and fries for one and a beef satay for the other), as well as a bottle of wine. They then continued to talk, and ordered another bottle of wine. Over a period of about three hours they consumed the two bottles of wine as well as some water.

[10] At about 3.00 pm, Ms Steel’s son arrived at the restaurant. He joined the two young men and drank a bottle of beer while talking with them. They proceeded to order a third bottle of wine. At that stage Ms Goodwin approached her mother. She asked her mother whether they should be supplied with the third bottle. Ms Steel gave her daughter permission to make the sale. She told her daughter to tell the patrons that this would be their last bottle. Ms Steel made the decision on the basis that although the young men had been a bit noisy, they had quietened down when asked, and showed no other signs of intoxication.

[11] Ms Steel left the premises at about 4.00 pm, and Ms Goodwin took over as the duty manager. The three young men left the premises at about 4.20 pm. In the last hour or so, they had consumed the third bottle of wine, together with water. Although they were noisy, neither Ms Goodwin nor Ms Steel noticed any signs of intoxication. The chef at the café supported their views.

[12] The evidence showed that once they were outside the premises, the impact of the three bottles of wine became manifest. The two patrons had gone into a dairy, and had purchased pies, which they began throwing at each other. They were seen to be staggering about and yelling and swearing. Within the space of 40 minutes the Police began receiving calls about two intoxicated males. The first call was made at 5.04 pm. There was some limited evidence that one of them had found a beer can or bottle in a rubbish tin, and had consumed what was left.

[13] One of the young men was observed to leap onto a parked car and run out on the street. A bus driver approached the two young men. He tried to reason with them but they took no notice and continued to act in an intoxicated and aggressive state. A second call was made at 5.12 pm. One of the men then entered a supermarket and tried to purchase a bottle of wine. When refused service he was offensive and abusive.

[14] In the course of these incidents one of the young men was seen to be holding a knife. He had earlier produced the knife at the restaurant in front of Ms Goodwin. She described it as a sheath knife. The man had said that he had bought the knife in town. Having showed it off he then put it away. Ms Goodwin assumed it was to be used for his job as a fisherman. She did not mention it to her mother.

[15] When the knife was observed in a public place, the Police took immediate action. They found the young men, both of whom were considered to be intoxicated. One man was described as a belligerent drunk. Both were arrested. We were advised that the residents of Te Anau who witnessed the events were shocked by the behaviour of the two men. Some were too frightened and distressed to leave the supermarket.

[16] With the benefit of hindsight Ms Steel accepted that she and her daughter had made an error of judgement. She was adamant that the young men were not observably affected by alcohol when the decision was made to supply them with further liquor. It was her assessment that their speech, co-ordination, appearance or behaviour were not clearly impaired. She produced two character references together with an affidavit from the chef. He stated that when he had a five minute coffee break at about 4.00 pm, and went outside, he observed the young men talking normally.

The Authority’s Decision and Reasons

[17] Ms Hopkins had helpfully prepared written submissions. She referred to the Authority’s decision in Spring v King LLA 1414/93, where it had been suggested that where a licence or certificate was at stake, the standard of proof should be very close to that of beyond reasonable doubt. However, in law, there is no such level. There are only two standards of proof. One is on the balance of probabilities and the other is beyond reasonable doubt.

[18] Ms Hopkins submitted that the Police evidence should be disregarded as hearsay. She argued that admitting the evidence would be in breach of the Bill of Rights Act 1990. The primary section in the Sale of Liquor Act dealing with admissibility of evidence is s.109(1). This section reads:

The Licensing Authority or a District Licensing Agency may receive as evidence any statement, document, information, or matter that in its opinion may assist it to deal effectually with any matter before it, whether or not the statement, document, or matter would be admissible in a Court of law.

[19] This section gives us a discretion to allow evidence that we think will assist us to deal effectually with any case we are considering. The discretion may be exercised whether or not the evidence would be admissible in a Court. It is clear that the evidence of what the two young men were doing up to the arrest could not be challenged in any way. This did not mean that they were noticeably drunk in the café. We are well aware of situations where the impact of alcohol catches up with drinkers, particularly those drinkers that have little interest in pacing themselves. On that basis we accept that the evidence was insufficient to establish that Ms Steel allowed the young men to become intoxicated, or having done so allowed them to stay on the premises. The focus of the case fell on her conduct in allowing them to drink the three bottles of wine.

[20] The respondent’s statement to the Police, pertaining as it does, to what was happening in the café must assist us in determining the application. We accept that there may be cases where relevant evidence may be excluded on the grounds that its probative value is substantially outweighed by other factors such as unfairness, but this was not one of them. See Federated Farmers of NZ v National Water & Soil Conservation Authority (unreported, HC, Wellington, 17/11/86, per Jeffries J).

[21] In our view the only relevant section in the New Zealand Bill of Rights Act 1990 is s.27. That section reads:

Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.

[22] We accept that there was insufficient time to give justice to the facts and the arguments. This was caused by circumstances beyond any person’s control and for that we apologise. We believe that it is possible to make a finding on whether Ms Steel failed to conduct the premises in a proper manner on the facts that were not seriously in dispute.

[23] 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 is 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. 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.

[24] 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).

[25] 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.

[26] 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.

[27] This case is really 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. We repeat that the applicant does not have to prove a breach of the Act. There has to be a failure to conduct licensed premises properly.

[28] The evidence shows the two young men were supplied with too much liquor for their own good. The waitress acted correctly by referring the matter to the duty manager. The duty manager did not take the opportunity at the time to talk with the young men and find out their intentions, although she did talk to them later. She did not offer more food. She did not question her daughter other than tell her to advise the patrons that this was their last bottle. As she stated it was an error with significant consequences. We thought the conduct was unprofessional. In summary, Ms Steel failed to conduct the premises in a proper manner. She failed to live up to the standards expected of the holder of a General Manager’s Certificate.

[29] Given that the issues are about intoxication it is clearly desirable to make a suspension order. Ms Steel is entitled to bring her unblemished record into account. However, 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 were issues of intoxication that gave an added seriousness to what happened. In this case the issue of host responsibility may well have been subsumed by the temptation to sell more liquor.

[30] Accordingly, and for the reasons stated, we order that the General Manager’s Certificate number GM 187/2001, issued to Suzanne Joy Steel, is suspended for three weeks from Monday 4 May 2009.

DATED at WELLINGTON this 1st day of April 2009

Judge E W Unwin
Chairman