Wright v Rightside [2010] NZLLA 369 (20 April 2010)

Last Updated: 23 April 2010

Decision No.PH 369/2010 –
PH 370/2010

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 or cancellation of on-licence number DLA/01/ON/003/2007 and off-licence number DLA/01/OFF/002/2007 issued to RIGHTSIDE PROPERTIES LIMITED in respect of premises situated at 87 Broadway, Kaikohe, known as “Kaikohe Hotel”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension or cancellation of General Manager's Certificate number DLA/01/GM/046/2003 issued to NEAL ALAN SUMMERS

BETWEEN GRAEME LESLIE WRIGHT

(Police Officer of Kerikeri)

Applicant

AND RIGHTSIDE PROPERTIES LIMITED

First Respondent

AND NEAL ALAN SUMMERS

Second Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Mr P M McHaffie

HEARING at PAIHIA on 22 March 2010

APPEARANCES

Senior Constable G L Wright - NZ Police - applicant
Mr N A Summers - second respondent and on behalf of first respondent
Mr J A Thorne - Far North District Licensing Agency Inspector - to assist

ORAL DECISION OF THE AUTHORITY

[1] This decision relates to two applications brought by the Police. The first application is brought pursuant to s.132 of the Act for the suspension or cancellation of the on and off-licences issued to Rightside Properties Limited in respect of premises situated at 87 Broadway, Kaikohe, known as “Kaikohe Hotel”.

[2] The second application is brought pursuant to s.135 of the Act for the suspension or cancellation of a General Manager's Certificate issued to Neil Alan Summers.

[3] The application for the suspension or cancellation of the on-licence is brought on the grounds set out in s.132(3)(a) of the Act to the effect that on 7 August 2009 the licensed premises were conducted in breach of one of the conditions of the on-licence. In particular it is alleged that on 7 August 2009, Condition (d) of the on-licence was breached in that whilst the premises were open for the sale of liquor, food of a range and style similar to that shown on the menu at the premises was not conveniently available for patrons visiting the premises.

[4] In respect of the application for the suspension or cancellation of the manager’s certificate the application is brought on the grounds set out in s.135(3)(a) of the Act in that the manager failed to conduct his licensed premises in a proper manner. Again the allegation as to the failure to make food available is the same as in respect of the application objecting to the on-licence.

[5] On 7 August 2009 as part of a controlled purchase operation, Deborah Judy Anderson, who was a health worker employed with Northland Health, and Constable Brian George visited the “Kaikohe Hotel”. They both went into the hotel and noted that there was a menu displayed.

[6] There is some debate between the two witnesses as to exactly what took place but it seems clear that the only bar person present was asked by them if they could get something to eat. The response was laughter and then words to the effect “oh, no you guys are in the wrong place. If you want food go down the road”. The bar person was then asked if they had any of some of the items contained in the menu to which she responded along the lines “you wouldn’t want to eat any of the crap here, that’s just cardboard. It’s just frozen food. Owner is budget he won’t provide anything decent. If you want a feed go down the road”.

[7] No evidence was called by the respondents as to what occurred on 7 August 2009. Mr Summers, the representative of the licensee and a general manager, indicated that there was food available in the cool store and chiller. He produced a statement from a Kerry Wilson who claimed that she was the duty manager present on 7 August 2009. She subsequently made a statement to the Police which is at variance with that dated 31 August 2009, produced by the respondents.

[8] If one looks at the first statement upon which the respondents rely, the pertinent portion reads:

“On the 7th August 2009 I believe that I was asked by a member of the public if we had any meals available. My answer to this was that we do not offer meals as we do not have an open kitchen. However we do offer a variety of refreshments.”

[9] The issue for the Authority is whether the condition of the licence was breached. The Authority considers that it was. The requirement in the licence was that the food must be conveniently available. In this case we have the clear evidence both of Ms Anderson and Constable George to the effect that when they asked for food it was not conveniently available. It is possible that there was food on the premises but it was not made available to those persons who had asked for it. That evidence is largely confirmed by the statement of Ms Wilson.

[10] In these circumstances the Authority is satisfied that the allegations brought by the Police are proved. The situation in which the respondents find themselves is aggravated by reason of the fact that in a decision (NZLLA PH 632-635/2008 dated 14 May 2008) relating to the same licensee and general manager, an allegation to the effect that food was unavailable on the premises was upheld.

[11] The Authority accepts that there were many other allegations made at the same time and which are dealt with in the decision of 14 May 2008. Suffice to say that there was a suspension of the on and off-licences for a period of 10 days in respect of that matter and the General Manager's Certificate was suspended for five weeks. The Authority considers that the decision of 14 May 2008 served as a warning to the respondents about the requirements to make food available.

[12] The next issue which arises is whether it is desirable to suspend or cancel the on and off-licences and the General Manager's Certificate. The Authority has concluded that the general tenor of the evidence which it has heard indicates that the “Kaikohe Hotel’s” operation leaves a considerable amount to be desired. It considers that it is important that there be proper supervision and the obvious person to supply that supervision is Mr Summers.

[13] It is apparent that the problem which he faces today arises from the employment of duty managers or a duty manager in respect of whom he has fallen out. Two duty managers’ names were mentioned at the hearing, namely Vivian Buzby and Kerry Wilson. Both are no longer in the employ of the licensee and Mr Summers indicated in evidence that he certainly would not re-employ them.

[14] The problem that the respondents find today is that the food was not made available. It may be that the staff he employed were simply too lazy to make it available. The reality however, is that it was not made available and that is the reason for this hearing.

[15] The Authority has concluded that there will be no suspension of the General Manager's Certificate issued to Mr Summers primarily for the reason that it considers that Mr Summers needs to start to take responsibility for the operation of the “Kaikohe Hotel”. To do that he will need his General Manager's Certificate.

[16] However, there will be suspension of the on and off-licences for a period of 48 hours. As is customary in these matters the day of the week when the suspension will be operative will be the same day of the week that the operation took place. That was a Friday evening.

[17] In calculating the period of suspension of the on and off-licences the Authority considers that the breach of the licence deserved a 24 hour suspension. However, when one takes into account the warning of the Authority contained in its decision of 14 May 2008 the Authority considers that an additional period of time is appropriate because of this aggravating feature.

[18] Accordingly the on and off-licences are suspended for a period of 48 hours commencing at 1.00 am on Thursday 15 April 2010.

DATED at WELLINGTON this 20TH day of April 2010

B M Holmes
Deputy Secretary

Kaikohe Hotel.doc(aw)