Sloan v Harrison Sales Limited [2009] NZLLA 475 (2 April 2009)

New Zealand Liquor Licensing Authority

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Sloan v Harrison Sales Limited [2009] NZLLA 475 (2 April 2009)

Last Updated: 3 June 2010

Decision No. PH 475/2008-
PH 476/2008

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 on-licence number 030/ON/13/2007 issued to HARRISON SALES LIMITED in respect of premises situated at 122 Dickens Street, Napier, known as "Monty's"

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension or cancellation of General Manager's Certificate number GM 067/2007 issued to CHRISTINE MARIE ROPER

BETWEEN ANDREW CHARLES SLOAN

(Police Officer of Napier)

AND AUDREY MERLE CARR

(Napier District Licensing Agency Inspector)

Applicants

AND HARRISON SALES LIMITED

First Respondent

AND CHRISTINE MARIE ROPER

Second Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at NAPIER on 19 March 2008

APPEARANCES

Mr M S Webster – Napier District Licensing Agency Inspector – applicant
Senior Sergeant A C Sloan – NZ Police – applicant
No appearance by or on behalf of the respondents

ORAL DECISION OF THE AUTHORITY

[1] The two applications before the Authority relate to a brothel situated at 122 Dickens Street, in Napier. The business was formally known as "Fallen Angels". More recently we understand that it trades under the name of "Monty's". This is the fifth occasion that the premises have come before us in the last two years.

[2] The brief history of the on-licence relating is that it was granted to a company on 28 September 2004. That company was owned and operated by Mr Vaughan Peter Bowkett. The original licence was granted by the Napier District Licensing Agency and allowed for sales at any time on any day.

[3] Within four months of trading having commenced the Police filed an application for the cancellation or suspension of the licence as well as for Mr Bowkett's General Manager's Certificate. The applications were withdrawn in April 2005 after an agreement was reached between the Napier Liquor Licensing Sergeant and Mr Bowkett.

[4] In September 2005 the company applied for the renewal of its on-licence following what is known as the first probationary year. An adverse report was filed and the matter came before us by way of a public hearing. In the decision Taite and Taite Associates Limited, LLA PH 858/2005 we granted a renewal of the on-licence but restricted the trading hours to 3.00 am the following day.

[5] Subsequently the Police filed an application for the suspension or cancellation of the licence as well as for the suspension or cancellation of Mr Bowkett's General Manager's Certificate. The grounds for the application were that although we had restricted trading to 3.00 am, the brothel had continued to trade well into the early hours of the morning beyond the authorised closing time.

[6] At the hearing evidence was given of the company’s failure to adhere to the trading hours imposed in our decision. We said at paragraph [25]:

"We have absolutely no faith in Mr Bowkett's ability to maintain the licensed premises in accordance with the conditions of the licence. We are perfectly satisfied that the various allegations in the two applications have been established. By continuing to sell and supply liquor after 3.00 am the on-licence is currently being conducted in breach of the Act and in breach of the conditions of the licence and in an improper manner. In the light of Mr Bowkett's attitude we are now satisfied that the company is unsuitable to be the holder of an on-licence. In the same way and for the reasons that we have attempted to articulate we are satisfied that Mr Bowkett as the holder of a General Manager's Certificate has failed to conduct the licensed premises in a proper manner and his conduct has been such as to show that he is unsuitable to hold the General Manager's Certificate."

[7] For the reasons given in a decision of Andrew Charles Sloan v Taite Taite and Associates and Or LLA PH 35-36/2006 both the on-licence and the General Manager's Certificate were cancelled.

[8] The third time that the brothel came before the Authority by way of a public hearing was when Mr Bowkett's mother, Christine Marie Roper, made application for an on-licence in respect of the same premises. There was also an application made by her for a General Manager's Certificate.

[9] Both applications were opposed by the Napier District Licensing Agency Inspector and by the Police. The basis of the opposition was that Mr Bowkett who had been deemed to be unsuitable would continue to play an influential role in the management of the business. There was a suggestion that Mrs Roper's applications were simply a means to permit Mr Bowkett to continue running the business. We were persuaded that Mrs Roper intended to manage "Monty's" herself, and that to do so effectively she required a General Manager's Certificate. Accordingly we granted the new on-licence in respect of the premises as well as Mrs Roper's General Manager's Certificate. The on-licence was granted on 17 May 2007. It was issued to a company known as Harrison Sales Limited of which Mrs Roper was the sole director

[10] On 6 September 2007, the Authority received applications brought by the Police and by the Napier District Licensing Agency for the suspension or cancellation of the new on-licence as well as Mrs Roper's General Manager's Certificate. The grounds were generally that the premises had been conducted in an improper manner and that the licensee's conduct had been such as to indicate a lack of suitability. In relation to Mrs Roper's General Manager's Certificate the application was based on the ground that Mrs Roper had failed to conduct licensed premises in a proper manner.
[11] The application was set down for a public hearing on 25 January 2008. There was difficulty in serving the notice of hearing on Mrs Roper. Mr Ross Murphy a licensing consultant, had become involved. He had written a letter to the Authority. Mr Vaughan Bowkett appeared at the hearing. He requested an adjournment because he said that his mother had had to go to Oamaru for a family funeral. Mrs Roper was not present. We decided against opposition to grant the adjournment. We said that it was with some reluctance that we did so because of the major cost involved in getting parties to the hearing. The applications seemed to be an issue that could not be resolved without our intervention, and we therefore stated that we expected that there would be a hearing that would be specifically arranged prior to Easter.

[12] Our reasons were stated in the decision Andrew Charles Sloan and Or v Harrison Sales Limited and another LLA PH 70-71/2008. In that decision we indicated that Mrs Carr's brief of evidence had already been disclosed to Mr Bowkett representing his mother. We suggested that the Police evidence also be disclosed to Mr Bowkett so that Mr Murphy, (if he became involved), could be appraised of the evidence that was required to be answered. The briefs of evidence were duly handed over and in due course the matter was set down for hearing on Wednesday 19 March 2008.

[13] On the file there are emails sent by Mr Ross Murphy. He stated in the first email that he had spoken to the parties following the earlier adjourned case and asked for information but nothing had arrived. He had rung the premises and sent emails and left a message on Mr Bowkett's mobile phone without any response. On that basis he said he would have difficulty in being ready for the hearing. Subsequently on 17 March last he wrote and confirmed that he would not be acting for Mrs Roper or her company because there had been no response from them.

[14] There were letters on the file sent by Mr Bowkett to Senior Sergeant Sloan as well as to Mrs A M Carr requesting certain information. We note that Mr Bowkett was written to on 6 March last advising that all the disclosure had been given. In fact the disclosure amounts to the bound briefs of the four witnesses.

[15] There was some contact between the Senior Sergeant and Mr Bowkett confirming details about what was being sought. Some of the information was not available to the Senior Sergeant. During the discussion it was noted that the hearing was to take place the following week.

[16] At the hearing there was no appearance by Mrs Roper or her son. In the circumstances we proceeded to hear the evidence which was as follows. On 12 July 2007 information was received from a bank about a potential fraud matter. The Police were advised that there was a possible suspect at the bank. Detective Sergeant Timothy Nigel Smith arrived at the bank at about 3.10 pm and spoke with Chantel Bowkett, (Mr Bowkett’s sister). Ms Bowkett is a customer of the bank.

[17] The Detective took a statement from Ms Bowkett. She said that she had started a business account called "Groovy Pets". She said that her mother was the bar manager for "Fallen Angels" and that her brother Vaughan Bowkett actually ran the massage parlour side of the business as well as the accounts. She said she had signing authority on the account because her brother and her mother could not get accounts under their names. She stated that they had asked her to open an account for them around February 2006. We understand that to be an account with the bank.

[18] As a consequence of the statement a search warrant was executed at the brothel at 122 Dickens Street, Napier. Christine Roper was present. She confirmed that she was the bar manager and that she had owned the business for almost 12 months. She said she had not been present in the previous three weeks because she was looking after her grandchildren as part of a Court order. She said that Vaughan had been covering for the parlour. She confirmed that the Eftpos machine had been obtained from the ANZ bank through her daughter Chantel's account. She said that the business known as "Groovy Pets" had fallen by the wayside and accordingly they had decided to use this particular Eftpos machine and it had been duly set up in the brothel.

[19] Detective Smith concluded his evidence by stating that on 15 July he went back to the premises in Dickens Street and spoke with a female in a bedroom. There was a smell of cannabis emanating from the bedroom. As a consequence a search was conducted. Included in the items found in the search was an exercise book. The heading in one of the pages made reference to a stag do. A contact person was mentioned who belonged to the Black Power group. The report indicated that there were 30 members of Black Power who were wanting a discreet location to hold a stag do for an ex member who was handing in his patch to get married. There were references in the book as to who would be handling security, and who would be dealing with the bar. The book further records that there would be a private room required for the illegal consumption of liquor. Drinking games and sculling races were referred to as part of the entertainment.

[20] Detective Glen Burrell spoke to Mr Bowkett about the Eftpos transactions on 12 July 2007. He obtained a statement from Mr Bowkett. As a consequence of the statement Mr Bowkett was arrested and charged with 20 charges of using a document. It seems that somebody had possession of six blank counterfeit credit cards. These are white cards with a black plastic strip. Imprinted on the strip were the credit card records of six residents from the United States of America. It appears that in the one day over a period of about 50 minutes, the six cards were used a total of 20 times. Amounts of $5,000 were credited to the Eftpos account holder and debited to the owners of the six cards. By this process it is alleged that the brothel obtained credit to the value of $70,000. There were six occasions when the bank had refused to pay out.

[21] Mr Bowkett is defending the charges but there has already been a depositions hearing at which a prima facie case was conceded. The matter is due to go to trial on 29 May next. Sergeant Burrell confirmed that he was part of the Police party that was on the premises on 15 July 2007. He said that not only was cannabis located but there were also usable traces of methamphetamine. In due course the person was convicted of possession of cannabis utensils and possession of methamphetamine utensils.

[22] There was a licensing visit to the premises on 13 December 2007. Ms Paula Sullivan identified herself as the duty manager. She said that she thought she had a General Manager's Certificate. She had been appointed by Christine Roper. It was noted that Vaughan Bowkett was behind the bar. Subsequent enquiries by Senior Sergeant Sloan revealed that Paula Sullivan had an extensive criminal history and there was no record of her ever having applied for or being granted a General Manager's Certificate. Indeed the Senior Sergeant stated that since the on-licence had been granted to Harrison Sales Limited, there had never been a notice of appointment of a manager or temporary manager under s.130 of the Act.

[23] Senior Sergeant Sloan recorded also that on a visit on 6 July 2007, there was no sign attached to the exterior of the premises stating the hours for which the premises would be open for the sale of liquor. He noted that on the footpath outside the front of the premises was a large blackboard recording "$3 beers". This is quite contrary to the concept of the sale of liquor being secondary to the main business of a brothel.

[24] Senior Sergeant Sloan met Vaughan Bowkett on 6 July 2007. Mr Bowkett said at that time that he was the acting temporary manager. A week later the Senior Sergeant was able to speak with Mrs Roper. He told her about finding that her son had been appointed as a temporary manager and that he had no choice other than to make application for the suspension or cancellation of the licence.

[25] All that information has in our view inevitably confirmed that the grounds for the applications to suspend or cancel both the on-licence and the General Manager's Certificate have been established. We are perfectly satisfied that there has been improper conduct, and that the licensee appears not to have any control of the premises. There is in our view a complete lack of suitability. In the absence of any explanation from Mrs Roper it seems clear to us that both the licence and the General Manager's Certificate should probably not have been granted in the first place. The lack of appearance on behalf of the respondents has satisfied us that it is desirable to make orders. In the circumstances, and given the above undisputed evidence, and the history of these premises it is appropriate that both for the on-licence and the General Manager's Certificate to be cancelled.

[26] Accordingly, and for the reasons given, on-licence number 030/ON/13/2007, issued to Harrison Sales Limited is now cancelled. General Manager's Certificate number GM 067/2007 issued to Christine Marie Roper is also cancelled.

DATED at WELLINGTON this 2ND day of April 2008

Judge E W Unwin
Chairman

Monty's.doc(aw)