Sheehan v Skycity [2010] NZLLA 403 (23 April 2010)

Last Updated: 30 April 2010

Decision No.PH 403/2010 –
PH 404/2010

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 006/ON/285/2006 issued to SKYCITY CINEMAS NOMINEES LIMITED in respect of premises situated at Shop L8, Westgate Shopping Complex, on the corner of North Western Motorway and State Highway 16, Massey, Waitakere City, known as “Westgate Village 8”

BETWEEN JASON PAUL SHEEHAN

(Waitakere District Licensing Agency Inspector)

Applicant

AND SKYCITY CINEMAS NOMINEES LIMITED

Respondent

AND

IN THE MATTER of an application by SKYCITY CINEMAS NOMINEES LIMITED pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at Shop L8, Westgate Shopping Complex, on the corner of North Western Motorway and State Highway 16, Massey, Waitakere City, known as “Westgate Village 8”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Ms J D Moorhead

HEARING at AUCKLAND on 26 March 2010

APPEARANCES

Mr J P Sheehan - Waitakere District Licensing Agency Inspector - applicant and in opposition to application for renewal of on-licence
Mr P D Swain - agent for respondent and applicant for renewal of on-licence
Constable J D Thornley - NZ Police - to assist

ORAL DECISION OF THE AUTHORITY

[1] This decision relates to two applications. The first is an application brought pursuant to s.132 of the Act for the suspension of the on-licence issued to Skycity Cinemas Nominees Limited in respect of premises situated at Shop L8, Westgate Shopping Complex, corner of North Western Motorway and State Highway 16, Massey, Waitakere City, known as “Westgate Village 8”.

[2] The second application has been brought by Skycity Cinemas Nominees Limited pursuant to s.18 of the Act for renewal of an on-licence in respect of the same premises.

[3] The application for suspension has been brought upon one ground. It is alleged that at a hearing at Auckland on 1 November 2007 Mr P D Swain, as agent for the respondent, undertook first that all liquor had been removed from the theatre complex after a successful controlled purchase operation and had remained removed up to the date of hearing. Second, that liquor would not longer be sold and supplied pursuant to the licence on a daily basis. Third, that the respondent intended to retain the on-licence for special events such as special viewings, premieres and the like. There was to be no expectation that liquor would be available to other persons.

[4] The application for renewal is opposed by the Waitakere District Licensing Agency Inspector and five allegations are made in that regard. They are:

• [a] A breach of the undertaking previously referred to;
  
• [b] A breach of s.130(1) of the Act in that on 1 April 2009 there had been no notification to the Waitakere District Licensing Agency that a Jared Murray who holds a General Manager's Certificate had been appointed to manage the premises;
  
• [c] On 5 June 2009 an incorrect name of the duty manager was recorded on the duty manager’s board;
  
• [d] The duty manager identified in terms of s.115(3) of the Act was not on the premises;
  
• [e] No low alcohol beverage was available for sale.
  

[5] In its decision NZLLA PH 1208-1209/2007, dated 13 November 2007 the Authority made the following comments:

“[7] Mr P D Swain appeared for both respondents. At the hearing he acknowledged that the particulars were correct and that there was no need to call any evidence. Mr Swain advised that within 48 hours of the second successful controlled purchase operation all liquor was removed from the theatre complex and that has been the position ever since. He said that management had made the decision that liquor would no longer be sold and supplied pursuant to the licence on a daily basis.”

[6] At paragraph [8] the decision reads:

“[8] The company intends to retain the on-licence for special events such as special viewings and premieres and the like. But there will be no expectation that liquor would be available to others. Mr Swain confirmed that the staff member had not followed company policy, and had been dismissed as a result of the illegal sale.”

[7] At paragraph [9] the Authority recorded:

“[9] In assessing the appropriate sanction we have taken into account [a] that the sale of liquor is not a primary purpose for people attending the theatre; and (b) that the company has taken a number of significant steps as a result of the sale; and (c) the full cooperation of both respondents.”

[8] At paragraph [10] it stated:

“[10] In those circumstances it seems to us that cancellations would be quite out of the question. On the other hand we believe that it is desirable that some modest periods of suspension be imposed.”

[9] The evidence is that on 1 April 2009 liquor was sold and supplied to the general public at the premises. Likewise on 5 June 2009 liquor was being sold and supplied to the general public. It is clear that liquor has been sold and supplied to the general public on a regular basis and that the respondent has changed its position that liquor would no longer be sold and supplied pursuant to the licence on a daily basis.

[10] For the respondent, Mr Swain contended that he gave no undertaking on 1 November 2007. He says that what he endeavoured to convey to the Authority was that the respondent had made a decision that liquor would no longer be sold and supplied on a daily basis, but that the respondent always had the right to change its corporate mind in this regard. He acknowledges that he doubts that he added that proviso or qualification to his submissions on 1 November 2007 although he does not recall exactly what was said.

[11] Regardless of what Mr Swain actually said on 1 November 2007 it is clear that the Authority reached the conclusion that he was giving an assurance to it that in the future all liquor would remain removed from the theatre complex and that in the future liquor would no longer be sold and supplied pursuant to the licence on a daily basis. He gave an assurance on behalf of the respondent that the company intended to retain the on-licence for special events only.

[12] It is clear from the decision of 13 November 2007 that that is the way in which the Authority interpreted Mr Swain’s submissions and that it took those submissions into account in reaching its decision to suspend both the on-licence and General Manager's Certificate on that occasion.

[13] This conclusion is clear from paragraph [9] of the decision where the Authority stated that it had taken into account:

“... [b] That the company has taken a number of significant steps as a result of the sale.”

Those significant steps were the removal of alcohol from the premises and the decision that liquor would no longer be sold and supplied pursuant to the licence on a daily basis.

[14] In these circumstances the Authority is satisfied pursuant to s.132(3)(a) of the Act that the licensed 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 assurance given by Mr Swain was given as agent for the respondent. The respondent is therefore liable in respect of them.

[15] Section 22 of the Act sets out the criteria for renewal. The Authority is obliged to have regard to the suitability of the licensee and the manner in which the licensee has conducted the sale and supply of liquor pursuant to the licence. In this regard the breach of the assurance is relevant both to the licensee’s suitability and to the way in which it has conducted the sale and supply of liquor.

[16] The other allegations raised by Mr Sheehan in opposition to this application are also relevant to both criteria. Indeed the Authority notes that none of them are denied.

[17] The next issue that the Authority has to consider in terms of the application for suspension is whether or not it is desirable that the on-licence be suspended. The Authority considers that the breach of the assurance which of course is the only ground upon which this application has been made, was a gross breach. However, given that the ownership of the licensee has recently changed completely, there seems little point in visiting the sins of the former owners on the current owners.

[18] Turning to the application for renewal, it is plain that the new ownership of the licensee is not tainted with the deficiencies applicable to the earlier owners. The Authority has concluded that in the circumstances of this case it is not desirable to impose any suspension of the licence. Rather it takes the view that the new owners of the licensee company should be given the opportunity of proving themselves a responsible licensee whose principal aim in the sale and supply of liquor on the premises will be to reduce liquor abuse.

[19] In those circumstances the Authority is prepared to grant the application for renewal but only for a period of two years from 24 February 2009. This is a probationary period but it will give the new owners of the licensee company the opportunity of proving themselves. The Authority notes that the way in which the sale and supply of liquor from these premises in the past has left much to be desired. Technically the licensee remains responsible for these former deficiencies, notwithstanding the change in its ownership.

[20] This decision is giving the new owners the opportunity of improving the position significantly. The Authority trusts that it will take advantage of the opportunity that is offered to it.

[21] Accordingly the application for suspension of the on-licence is declined. The on-licence is renewed for a period of two years from 24 February 2009. Finally the Authority notes that the licensee has changed its name. The new name is Event Cinemas Nominees Limited.

DATED at WELLINGTON this 23RD day of April 2010

B M Holmes
Deputy Secretary

Westgate Village 8.doc(aw)