Chenery v The Backyard [2010] NZLLA 1441 (2 December 2010)

Last Updated: 17 December 2010

[2010] NZLLA 1441

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 of on-licence number 005/ON/55/2008 issued to COLUMBUS VENTURES (2007) LIMITED in respect of premises situated at 3 Sunnybrae Road, Northcote, North Shore City, known as "The Backyard"

BETWEEN SHONTAHL JAYDI CHENERY

(Police Officer of North Shore)

Applicant

AND COLUMBUS VENTURES (2007) LIMITED

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum: Dr J Horn
Ms J D Moorhead

DECISION

We have before us an application by Constable S J Chenery dated 23 September 2010, for suspension of an on-licence. The grounds for the application are: that the premises have been conducted in breach of the provisions of s.168 of the Act – allowing any intoxicated person to be or to remain in licensed premises; and in breach of the condition of the on-licence relating to the provision of food when the premises are open for the sale of liquor. The applicant contends that the conduct of the licensee has been such as to show that it is unsuitable to hold the licence.

The application details a series of events and occasions when the premises known as “The Backyard” have come to the attention of the Police.

At 2.45 am on 10 October 2009 Police were required to assist with crowd control at the premises following a dance party that had taken place during the evening. During discussions with the North Shore Tactical Policing Unit, the promoter Mr Steve Gillett (for the licensee) exhibited signs of significant alcohol consumption.

During the visit an intoxicated male was located in the premises. Noise complaints had been received from neighbouring residents requiring the attendance of noise control officers who had subsequently issued a warning notice. The noise was sufficient to prompt the noise officers to recommend closure of the premises but they did not follow that course of action because they feared for their own safety.

On 15 October 2009 Police met with Mr Gillett to discuss the events of the evening in question. Mr Gillett accepted the matters raised by the Police and gave an assurance that there would be no repeat of the behaviour that led to Police attendance.

On 14 November 2009 the Police conducted a routine licensed premises check in “The Backyard”. The Police arrived to find fighting taking place between patrons and premises’ door staff. Police intervened and further patrons became involved, with the result that six persons were arrested for obstruction and disorder offences.

Following this incident a further meeting took place with the Police on 25 November 2009. Following further assurances and an undertaking to engage additional door security staff the Police took no further action.

During a routine visit on 15 January 2010 the Police located a male patron in the premises who they assessed as being intoxicated. This assessment was attended by the duty manager, Kristen Bloom, who did not agree with the Police view that the patron was moderately intoxicated.

On 11 February 2010 Mr Gillett was spoken to about the incident. He assured the Police that he had spoken to Ms Bloom about the matter and that she had no taken a ‘harder attitude’ towards intoxicated patrons. Ms Bloom had only recently obtained her General Manager’s Certificate and the incident was to be taken into consideration by the Police when the certificate came up for renewal.

On 18 March 2010 a meeting took place between the Police and Mr Gillett prior to a dance party scheduled in the premises for the evening of 20-21 March 2010. Mr Gillett was reminded of the earlier noise difficulties and he was cautioned that any repeat could result in closure of the event and the possibility of enforcement proceedings. Despite these precautions the event again engendered noise complaints eventually resulting in Police attendance to assist noise control staff in the seizure of equipment.

On the weekend of 8-9 May 2010 the Police conducted a routine inspection at “The Backyard”. A private function (engagement party) was in progress in part of the premises. Initial observations were that there were in excess of 20 persons exhibiting signs of intoxication, with varying behavioural patterns including staggering, swaying, shouting, spilling beverages, and a show of hostility towards the Police. The duty manager was spoken to and given five minutes to remove intoxicated patrons from the premises.

About 10 persons were removed with the deployment of a Police skirmish line. Three persons were arrested and due to the aggressive and hostile atmosphere prevailing the Police ordered the premises closed pursuant to s.174 of the Act. On 19 May a meeting took place between the Police, licensee and management of “The Backyard” and a representative of the Hospitality Association of New Zealand (HANZ).

During the meeting the Police indicated their intention to file applications for suspension of the on-licence and manager’s certificate as a result of the activities of 8-9 May 2010.

A letter from HANZ dated 25 May 2010 contended that suspension was not warranted, stating that the incidents were out of character with the general operation of the premises, the duty manager (Ms Bloom) had been subject to disciplinary procedures and stood down as a manager, and the business had already suffered a sanction by virtue of the s.174 closure.

HANZ proposed a number of measures to be put in place to ameliorate the Police concerns. These included:

• Full staff training in host responsibility
• Issue of ALAC’s responsibility booklets to staff and management
• Two managers on duty on Thursdays, Fridays and Saturdays
• Promotion of food Liaison with the local authority to ensure integrity of liquor-ban areas
• No entry to the premises after 1.00 am
• Better and more diligent overview of functions.
  

There was also acknowledgement that any further breaches of the Act would be likely to engender enforcement applications. The Police agreed to accept these proposals in as an alternative to an application to suspend the on-licence, but they pointed out that they considered “The Backyard” to be ‘high risk’ premises and there would be ongoing scrutiny of the operation of the business

Nevertheless, on 3 June 2010 the Police proceeded with their stated intention to file an application pursuant to s.135 of the Act, for suspension of Ms Bloom’s General Manager’s Certificate. By decision [2010] NZLLA 691 the certificate was suspended for three weeks by consent from 26 July 2010.

Since the Police acceptance of the proposals detailed above there have been three occasions when routine visits to the premises have resulted in the Police locating intoxicated patrons in breach of s.168 of the Act. These incidents occurred on 12 June 2010, 8 July 2010 and 13 August 2010.

The Police contend that, apart from these incidents, the undertakings in relation to promotion of food and engagement of two managers on Thursdays, Fridays and Saturdays have not been adhered to on at least 10 occasions between 4 June 2010 and 31 July 2010. It is submitted, therefore, that these failures constitute breaches of at least two of the undertakings contained in the afore-mentioned HANZ letter.

The respondent does not dispute the ground for the application and has agreed to suspension of the on-licence. Accordingly, we make the following order by consent:

On-licence number 005ON/55/2008, issued to Columbus Ventures Limited, is suspended for 48 hours from 9.00 am on Thursday 30 December 2010 until 9.00 am on Saturday 1January 2011.

DATED at WELLINGTON this 2ND day of December 2010

______________________
B M Holmes
Secretary

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