Morris v Railway Tavern and Clare [2010] NZLLA 194 (17 March 2010)

Last Updated: 1 April 2010

Decision No.PH 194/2010-
PH 197/2010

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 057/ON/59/2008 and off-licence number 057/OFF/43/2008 issued to RAILWAY TAVERN LIMITED in respect of premises situated at 40 Douglas Road, Amberley, known as “Railway Tavern”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager's Certificate number 058/GM/43/2007 issued to MALCOLM BRUCE CLARE

BETWEEN DANIEL PIERS MORRIS

(Police Officer of Christchurch)

Applicant

AND RAILWAY TAVERN LIMITED

First Respondent

AND MALCOLM BRUCE CLARE

Second Respondent

AND

IN THE MATTER of applications by RAILWAY TAVERN LIMITED pursuant to ss.18 and 41 of the Act for renewal of on and off-licences in respect of premises situated at 40 Douglas Road, Amberley, known as “Railway Tavern”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Dr J Horn

HEARING at CHRISTCHURCH on 24 February 2010

APPEARANCES

Sergeant A J Lawn - NZ Police - applicant
Mr M B Clare - on behalf of respondents and applicant for renewal of on and off-licences
Ms D L Morrison - Hurunui District Licensing Agency Inspector - to assist
Mr P N Shaw – on behalf of the Medical Officer of Health - to assist
Mrs E J Gibson - objector

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This decision relates to four applications.
[2] The first two applications have been brought by the Police and are dated 28 October 2009

• [a] The first is an application pursuant to s.132 of the Act for the suspension of the on-licence and the off-licence pertaining to Railway Tavern Limited in respect of premises situated at 40 Douglas Road, Amberley, known as “Railway Tavern”;
• [b] The second is an application brought pursuant to s.135 of the Act for the suspension of the General Manager's Certificate issued to Malcolm Bruce Clare.

[3] The other applications were brought by Railway Tavern Limited pursuant to ss.18 and 41 of the Act for the renewal of the on and off-licences in respect of the same premises.

The Applications for Suspension

[4] The applications for suspension of the on and off-licence have been brought on the following grounds:

• [a] That the licensed premises were conducted in breach of the provisions of s.166(1) of the Act in that on 14 December 2008 a patron named Dennis Edgecombe was sold liquor whilst intoxicated on the licensed premises; and further s.167(1) of the Act was breached in that the same person was allowed to become intoxicated to the extent that he was ultimately involved in a motor accident shortly after leaving the premises. He was convicted of driving with excess breath alcohol when the reading was 1039 micrograms per litre of breath;
• [b] The conduct of the licensee was such as to show that it was not suitable to hold a licence. In particular it is alleged that on 13 December 2008 a patron was abused by Malcolm Clare (the director and shareholder of the licensee), when Mr Clare had been drinking and appeared intoxicated;
• [c] Contrary to s.168(1)(b) of the Act, drunkenness and disorderly behaviour were permitted to occur on the premises. It is alleged that on 8 May 2009 at about 12.00 am a noise control officer attempted to serve a noise abatement notice (as a result of complaints from neighbours) but was prevented from doing so by an intoxicated and abusive Mr Clare.

[5] The application for suspension of Mr Clare’s General Manager's Certificate has been brought on the following grounds:

• [a] That he failed to conduct the licensed premises in a proper manner and in particular, whilst intoxicated, abused a patron on 13 December 2008;
• [b] On 14 December 2008 he allowed a patron, namely Dennis Edgecombe, to become intoxicated on the premises to the extent that shortly thereafter he was found to be driving a motor vehicle with excess breath alcohol where the reading was 1039 micrograms per litre of breath;
• [c] He allowed drunkenness or disorderly behaviour on the premises and in particular, on 8 May 2009, whilst intoxicated, abused a noise control officer who was endeavouring to serve a noise abatement notice;
• [d] That his conduct as manager was such as to show that he is not a suitable person to hold the General Manager's Certificate. In particular on 26 May 2009 he arrived at the premises after attending a charity function. He and his associates were intoxicated and were refused service by the duty manager whereupon he overruled the duty manager and served both himself and his associates.

Decision on Applications for Suspension

[6] The grounds for the applications for suspension have been set out in the foregoing paragraphs. They are specific and it is only those grounds in respect of each application that the respondents needed to answer at the hearing. As Lord Denning said in Kanda v Government of Malaya [1962] UKPC 2; [1962] AC 322:

“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them.”

The On and Off-licences

[7] In respect of the application for the suspension of the on and off-licence the Authority is satisfied that the allegations of breaches of ss.166 and 167 of the Act on 14 December 2008 (whereunder Dennis Edgecombe, having consumed liquor on the premises, was ultimately apprehended and convicted of driving with excess breach alcohol) are proved. Mr Clare, in his evidence on the matter, stated that he did spend some time with Mr Edgecombe whilst he was on the premises, but did not notice that he was intoxicated. However, after Mr Edgecombe left the premises Mr Clare became aware of Mr Edgecombe’s intoxication to the extent that he told him that he should not drive. In our view however, given the level of alcohol found to be in Mr Edgecombe’s system shortly after he had left the premises, it must have been obvious to any independent observer on the premises that he was grossly intoxicated. In this regard, Mr Clare’s judgemental faculties are suspect.
[8] The alleged abuse of patrons by Mr Clare is not supported by any viva voce evidence from any of the participants to the incident. The evidence was hearsay. Considerable caution needs to be exercised before accepting it. There is no doubt that there was an incident: but there were two sides to the story. The Authority takes that matter no further.
[9] The Authority accepts the evidence that on 8 May 2009 an intoxicated and abusive Malcolm Clare prevented a noise control officer from serving a noise abatement notice. This incident not only involved the use of licensed premises in a disorderly manner but, more importantly, indicated that the conduct of the licensee was such as to show that it was not suitable to hold the licence.
[10] It follows that there are grounds in terms of s.132(3) of the Act for action to be taken under the section against the licensee.
[11] Further, the Authority is of the opinion that the matters raised against the licensee are sufficiently serious as to make it desirable to make an order in terms of s.132(6)(c) of the Act suspending the licences. (In this regard, the off-licensed premises are within the tavern itself and accordingly any action which is taken in respect of the on-licence affects the off-licence). This is the first time that an application has been made for the suspension of these on and off-licences and in these circumstances the Authority concludes that it is appropriate that the two licences be suspended for a period of three days.

The General Manager’s Certificate

[12] Whether or not Mr Clare was actually acting as a duty manager at the time the various allegations occurred is irrelevant. The Authority has held that ‘off-duty’ conduct of holders of managers’ certificates places those holders under scrutiny whether they are in control of licensed premises or not. Decision C D Hayes NZLLA PH 1249-1250/2007 is on point, even though in those circumstances the manager was not on the licensed premises at the time the alleged incident occurred. Mr Clare’s presence within the premises at the time of each incident renders him culpable.
[13] In respect of the allegation of abusing a patron whilst intoxicated on 13 December 2008, there is no acceptable evidence that the incident actually occurred as described by the patron.
[14] The allegation that Mr Edgecombe was sold liquor whilst intoxicated on the premises, indicates a serious breach of ss.166 and 167 of the Act.
[15] Likewise, the allegation that on 8 May 2009 while intoxicated Mr Clare prevented the noise control officer from serving the noise abatement notice is of real concern to the Authority. Whilst Mr Clare disputed the allegation, the independent evidence of both Mr Cuthbert (of Armourguard) and Sergeant Stewart satisfy the Authority that the incident did occur. A similar situation was dealt with by the Authority in Ian Neville Frith NZLLA PH 591/2005 when the Authority had this to say:

“Current expectations are that the management of licensed premises is now conducted by persons of integrity who are committed to supervising the sale and supply of liquor, and concerned to give meaning to the term ‘host responsibility’. Mutual respect and co-operation between managers and enforcement agencies, is a vital part of this expectation.”

[16] As to the final allegation of overriding the duty manager on 26 May 2009, despite his protestations to the contrary, the Authority considers that Mr Clare did commit a breach of s.115(4) of the Act which requires the licensee to take all reasonable steps to enable the manager to comply with s.115 of the Act. The Authority prefers the evidence of the duty manager, Ms Stewart, for the reasons set out later at paragraph 22.
[17] The Authority considers that Mr Clare, certainly as a representative of the licensee, but also in his capacity as a general manager, has failed to carry out his obligations in respect of s.4 of the Act. Section 4 states that the object of the 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 .... By allowing himself to be intoxicated on the premises, Mr Clare’s actions were the antithesis of any attempt to contribute towards the reduction of liquor abuse. He, himself, was abusing liquor.
[18] The Authority considers that the allegations supporting the application to suspend Mr Clare’s General Manager’s Certificate have been proved. He has not conducted the licensed premises in a proper manner. He is not a suitable person to hold a manager’s certificate. The seriousness of the allegations satisfies the Authority that it is desirable that the certificate be suspended for six weeks.

Applications for Renewal of On and Off-licences

[19] The Police, Medical Officer of Health, and the Inspector oppose renewal. In addition, Mrs E J Gibson objected to the renewal applications.
[20] The overall impression that the Authority obtained was that Mr Clare has adopted a somewhat cavalier attitude to his responsibilities under the Act. There are allegations of abuse to patrons, the noise control officer and the Police. He has allowed intoxicated persons to be and remain on the premises and has been assessed by the Police and others as being intoxicated whilst on the premises. In addition, there are allegations of patron disorder involving intoxication, noise disturbance, foul language, littering the general area outside the premises and excessive and unnecessary traffic noise. Whilst some of the evidence was not particularly specific, other allegations are certainly established to the Authority’s satisfaction.
[21] It is clear that to a significant extent, the licensee has become the victim of its own success. The “Railway Tavern” is situated in a residential area of Amberley. Before the arrival of the present licensee, it was a quiet but relatively poorly patronised tavern. The present licensee has introduced many improvements to the premises and offered entertainment at the tavern. Patronage has increased markedly. With the increase in patronage, noise volumes from persons both inside and outside the premises have increased to a degree that Mrs Gibson’s family (who live across the road) experience considerable disturbance at night and are unable to sleep. There is evidence that other neighbours experience similar problems.
[22] The incident involving the overriding of the duty manager on 9 May 2009 is also relevant to the renewal of the licences. Mr Clare is adamant that the incident did not occur. Ms Stewart, the duty manager involved, was adamant that it did. Significantly, immediately after the incident, Ms Stewart resigned and refused to work for the licensee in the future. She has managed to obtain employment as a general manager of licensed premises elsewhere. She says that she has held her General Manager's Certificate for some two and a half years without a complaint (except for the incident of 9 May 2009). The Authority is satisfied as to her credibility and has concluded that Mr Clare’s version of the incident was somewhat coloured by his consumption of alcohol on the night. His evidence appeared to be self serving.
[23] The Edgecombe incident referred to earlier indicates a serious breach of ss.166 and 167 of the Act.
[24] Whilst some of the external noise may well have come from other functions in the vicinity, the attitude of the licensee to problems affecting neighbours has been one of indifference. At the hearing, Mr Clare indicated that he felt he had no responsibility for noise that might occur outside the premises. Likewise, he considered that the mess created by patrons leaving the premises was not his responsibility.
[25] Comments were made by the Authority about matters such as this (in particular, noise) in Paihia Saltwater (2001) Limited NZLLA PH 391/2001. The Authority stated:

"It is our view that no-one should have to put up with persistent interference with their sleep patterns. We do not think it is sufficient to submit that a true test is the number of calls to the licensed premises or the Noise Abatement Officer. ...

Noise is not just a resource management issue. The escape of noise (particularly music) is an example of bad management. The Authority takes the view that if no attempt is made to prevent the escape of, or reduce noise, then it is the Authority’s duty to monitor the hours of opening, if not the existence of the licence.

We have already heard from licence holders who have either installed air conditioning so they can keep doors and windows closed, or have employed security people to monitor outside noise, or they have installed automatic sound control systems. We will always give full credit to those holders who acknowledge any existing noise problem and try and do something about it. In our view the term ‘host responsibility’ does not exclude the people who live nearby.

Many licensed premises have shown that they can operate in harmony with their residential neighbours. It is no coincidence that the managers and owners of such premises also show a commitment to the reduction of liquor abuse."

[26] Initially at the hearing, Mr Clare adopted a somewhat belligerent and unco-operative attitude. He seemed to consider that the various complaints that were being made about the conduct of the licensee were not its responsibility. Later in the hearing however, his attitude changed. He indicated that already steps had been taken to reduce noise coming from the premises from music played therein. He indicated that further steps could be taken to reduce such noise. Indeed, he was prepared to accept conditions in this regard. Although limitations in respect of noise and music may well be desirable, the statute is very specific in the conditions that are able to be imposed on an on-licence (s.14(5) of the Act). In decision White Pepper Limited NZLLA PH 364/2008, the Authority said at paragraph [54]:

“We have limited options. We are unable to impose conditions on a licence that have resource management implications such the control of noise or the playing of music. We are not unaware that the object of the Act refers to a regulatory system that is ‘reasonable’.

[27] Mr Clare also accepted that his attitude towards neighbours could easily be improved by consultation with them so that any problems could be monitored. He indicated that if seats were removed from outside the premises this could prevent patrons and others from hanging about the premises after closing time and thereby reduce noise.

Conclusion

[28] The Authority concludes that it is appropriate to renew the on and off-licences but only for a period of 12 months. The licensee has provided an undertaking that:

[a] The playing of live music in the premises will cease at 12.00 midnight; and

[b] Live music will not be played on the premises on more than one occasion per month.

[29] Further, in terms of ss.23 and 37 of the Act the trading hours are reduced to provide for the following:

Monday to Sunday 7.00 am to 1.00 am the following day;

[30] In relation to the enforcement applications, we make the following orders:

[a] On-licence number 057/ON/59/2008 and off-licence number 057/OFF/43/2008, issued to Railway Tavern Limited, are suspended for three days from 10.00 am on Sunday 18 April 2010 until 10.00 am on Wednesday 21 April 2010;

[b] General Manager’s Certificate number 058/GM/43/2007, issued to Malcolm Bruce Clare, is suspended for 6 weeks commencing on Sunday 18 April 2010.

DATED at WELLINGTON this 17TH day of March 2010

Judge J D Hole
Chairman

Railway Tavern.doc(aw)