Newell v The Bullock Bar [2011] NZLLA 1013 (5 September 2011)

Last Updated: 14 October 2011

[2011] NZLLA PH 1013

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 068/ON/24/06 and off-licence number 068/OFF/06/06 issued to the BULLOCK BAR LIMITED in respect of premises situated at 71 Ardmore Street, Wanaka, Queenstown Lakes District, known as “The Bullock Bar”

BETWEEN KEITH PHILIP NEWELL

(Police Officer of Queenstown)

Applicant

AND THE BULLOCK BAR LIMITED

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at QUEENSTOWN on 31 August 2011

APPEARANCES

Sergeant K P Newell – NZ Police – applicant
Mr B N Quirke – on behalf of respondent

DECISION OF THE AUTHORITY

[1] Both an on-licence and an off-licence have been issued to the respondent in respect of premises situated at Wanaka known as “The Bullock Bar”.

[2] The two directors and shareholders of the respondent are Brendon Quirke and Sean Colbourne.

[3] According to the agreed facts submitted at the hearing, on 24 October 2010 the respondent organised and ran the “Tui Perfect Women” competition. This attracted a large crowd at the premises.

[4] Both licensees were present and later stayed at the premises socialising and drinking. Neither director was involved in the actual management of the bar.

[5] At about 11.00 pm on 24 October 2010 Mr Colbourne assaulted a patron. In the course of the fracas a portion of the patron’s ear was bitten off by Mr Colbourne. As a result Mr Colbourne was convicted in the Queenstown District Court on 23 March 2011 of injuring with intent to injure. He was sentenced to eight months home detention, 250 hours community work and ordered to pay $10,000 reparation to the victim.

[6] This decision relates to an application brought by the Police for the suspension of both the off-licence and on-licence issued to the respondent. Given the agreement as to the facts, it is clear that in terms of s.132(3)(b) of the Act that on 24 October 2010 the conduct of the licensee was such as to show that it is not suitable to hold the licence.

[7] The issue for the Authority is whether or not it is desirable in terms of s.132(6) of the Act to make any order.

[8] Whilst the respondent has been in business for approximately seven years, on 28 September 2007 and on 18 December 2009 there were two failed controlled purchase operations at the premises. Each of these incidents resulted in suspensions of 24 hours. When considering the suitability of the respondent, not only the conviction of Mr Colbourne is relevant but also the respondent’s overall history. In totality it is not good.

[9] In respect of the 24 October 2010 incident, the Authority recognises that Mr Colbourne committed the serious offence whilst on a frolic of his own. Nevertheless, both directors of the respondent had been drinking on the premises at the time.

[10] In mitigation, once the incident had occurred management took all appropriate steps. The respondent is entitled to receive credit for the way its management behaved in difficult circumstances.

[11] Nevertheless, the conduct of the licensee as a whole needs to be considered: (see Sayed v McGlone HC Tauranga CIV-2010-470-397). In short, the respondent cannot escape responsibility simply because only one of its directors committed the criminal offence. It is the conduct of the respondent as licensee which is in issue in these proceedings and in that regard the Authority notes that no changes to the constitution of the respondent have occurred as a result of the incident. Given the seriousness of the incident it is surprising that Mr Colbourne remains a director of the respondent. This does not reflect well on the attitude of the shareholders of the respondent to the incident.

[12] In accordance with s.132(6) of the Act the Authority concludes that it is desirable to make an order suspending the on-licence. In the circumstances there is no necessity to make any order in respect of the off-licence.

[13] In calculating the length of the suspension, the Authority takes into account the history of the respondent in respect of both licences issued in respect of the premises. In addition, the conduct of Mr Colbourne as a director of the licensee is regarded very seriously by the Authority and warrants a substantial suspension. The Authority gives credit to the respondent in respect of the way in which the management of the premises acted given the difficult situation which arose on 24 October 2010.

[14] Whilst no order is made in respect of the off-licence, the on-licence is suspended for a period of four days commencing 7.00 am on 24 September 2011.

DATED at WELLINGTON this 5TH day of September 2011

B M Holmes
Secretary

The Bullock Bar.doc(aw)