Loye v Plato's Greek Taverna [2010] NZLLA 1424 (2 December 2010)

Last Updated: 17 December 2010

[2010] NZLLA PH 1424-1425

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 cancellation of on-licence number 007/ON/049/2009 issued to PLATO’S GREEK TAVERNA LIMITED in respect of premises situated on the Ground and First Floors, 43 Ponsonby Road, Freemans Bay, Auckland, known as “Plato’s Greek Taverna”

BETWEEN JASON PETER LOYE

(Police Officer of Avondale)

Applicant

AND PLATO’S GREEK TAVERNA LIMITED

Respondent

AND

IN THE MATTER of an application by PLATO’S GREEK LIMITED pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated on the Ground and First Floors, 43 Ponsonby Road, Freemans Bay, Auckland, known as “Plato’s Greek Taverna”

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum: Ms J D Moorhead
Mr P M McHaffie

HEARING at AUCKLAND on 29 November 2010

APPEARANCES

Sergeant J P Loye - NZ Police - applicant and in opposition to application for renewal of on-licence
No appearance by or on behalf of respondent and applicant for renewal of on-licence
Mr A C Phillips – Auckland District Licensing Agency Inspector - in opposition to application for renewal of on-licence

DECISION OF THE AUTHORITY

Introduction

[1] There are two applications before the Authority. The first is an application by the Police for cancellation of the on-licence issued to Plato’s Greek Taverna Limited (“the company”) in respect of premises situated on the Ground and First Floors, 43 Ponsonby Road, Freemans Bay, Auckland, known as “Plato’s Greek Taverna”. The second application is an application by the company, pursuant to s.18 of the Act, for the renewal of the on-licence.

[2] The application for cancellation was filed on 3 June 2010 and an amended application on 27 October 2010. The grounds for the application allege that the premises have been conducted in breach of the following provisions of the Act:

• s.115 - manager to be on duty at all times
• s.155 - supply liquor to a minor
• s.165 - unauthorised sale or supply
• s.168 - allowing drunkenness on licensed premises
• s.172A - licensee offences in respect of manager
• s.225 - notification of change of shareholding

[3] The application also alleges breaches of Conditions (b) and (c) of the licence, that liquor may only be sold when the premises are operating as a restaurant and that food must be available. Further grounds allege that the premises have been conducted in an improper manner and that the conduct of the licensee is such as to show that it is not suitable to hold the licence. The particulars are set out in a 12 page appendix.

[4] The company holds a restaurant style on-licence for the premises which was issued on 13 February 2009. Accordingly, the application for renewal of the licence is the first such application. The application sought changes to the conditions of the licence to that of a tavern style licence. The application for renewal was opposed by the Police and Inspector on the grounds that there were concerns relating to the ownership, management and operation of the premises.

[5] Both applications were set down to be determined by the Authority at a public hearing. Prior to the hearing an order for the production of documents by the company was made at the request of the Police. The information was to have been provided to the Police and the Authority by Monday 15 November 2010. That order was not complied with.

[6] Mr D G Scott, the Liquor Licensing Consultant who had acted for the company in regard to its renewal application was present at the hearing but formally withdrew on the grounds that he had been unable to obtain instructions. There is effectively no appearance on behalf of the company.

[7] The sole director of the company, Mr Loizos Michaels, is currently believed to be in Melbourne with no intention of returning. He faces active charges and a warrant for his arrest has been issued.

[8] Sergeant J P Loye confirmed that Mr Michaels had left the country on 13 July 2010 and had not returned. Sergeant Loye produced an email from the owner of the building at 43 Ponsonby Road confirming that the premises had been re-entered at 4.00 pm on 25 November 2010 and that “Plato’s Greek Taverna” ceased to operate from the premises as at that point in time.

[9] In the circumstances and in the absence of any representation by the company, we take the view that we are unable to be satisfied as to the matters that we must have regard to on the renewal application. Those matters are set out in s.22 of the Act as follows:

(a) The suitability of the licensee:

(b) The conditions attaching to the licence:

(c) The manner in which the licensee has conducted the sale and supply of liquor pursuant to the licence:

(d) Any matters dealt with in any report made under s.20 of this Act.

[10] In particular, it is clear that the company is not suitable to hold the licence. The application for renewal of the on-licence is therefore refused. It is no longer necessary for us to determine the application for cancellation as it has now been rendered nugatory however, we would have cancelled the licence in any event.

DATED at WELLINGTON this 2RD day of December 2010

B M Holmes
Secretary

Platos Greek Taverna.doc