Newell v Morris [2011] NZLLA 1025 (6 September 2011)

Last Updated: 14 October 2011

[2011] NZLLA PH 1025-1026

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager's Certificate number 067/GM/MC981/2010 issued to GEORGE ANDREW MORRIS

BETWEEN KEITH PHLIP NEWELL

(Police Officer of Queenstown)

Applicant

AND GEORGE ANDREW MORRIS

Respondent

AND

IN THE MATTER of an application by GEORGE ANDREW MORRIS pursuant to s.123 of the Act for renewal of a General Manager's Certificate

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 G A Morris – respondent
Mrs S L Wilson – Central Otago District Licensing Agency Inspector – to assist

DECISION OF THE AUTHORITY

[1] There are two matters before the Authority. The first is an application for the suspension of the General Manager's Certificate issued Mr Morris. The second is an application by Mr Morris for the renewal of his General Manager's Certificate. The opposition to the renewal of the General Manager's Certificate is based on the same facts as support the suspension application.

[2] The application for the suspension of the General Manager's Certificate alleges in accordance with s.135(3)(a) of the Act that on 12 November 2010 the respondent failed to conduct the licensed premises in a proper manner and in particular breached ss.166 and 167 of the Act. Section 166 relates to the sale or supply of liquor to intoxicated persons and s.167 of the Act relates to allowing persons to become intoxicated on licensed premises.

[3] The agreed facts disclose that on Friday 12 November 2010 the respondent was the duty manager and sole staff member present in the licensed premises known as “Poolburn Hotel”. The premises are situated on the Ida Valley Omakau Road, Poolburn, in Central Otago. They serve a remote rural locality although it is anticipated that future custom will also come from the Central Otago Rail Trail.

[4] About mid evening a group of four Irish males, who had been working on local farms in the area, arrived at the premises. They had been drinking prior to their arrival. They were known to the respondent who thought that their demeanour was similar to that which they displayed even when they were sober. It was normal for them to shove and punch each other and sing. The group were later joined by two locally domiciled women, one of whom later gave evidence in another forum that the group continued to drink throughout the evening, conversed noisily and were demonstrably intoxicated, although in an amicable mood. The group continued to consume liquor until the respondent turned off the lights and announced that he was closing the bar. At about 12.50 am the group left the premises in two motor vehicles.

[5] One of the vehicles, driven by a Mr Armitage, left the road a short time later. It struck an irrigation ditch and rolled several times. Mr Armitage was killed. A subsequent post mortem blood analysis revealed that the deceased had an alcohol level of 263 milligrams of alcohol per 100 millilitres of blood. The maximum permitted level under s.11(b) of the Land Transport Act 1998 is 80 milligrams of alcohol per 100 millilitres of blood. The reading indicates that the deceased was very intoxicated.

[6] At the time of the incident the respondent was in the process of negotiating the purchase of the “Poolburn Hotel”. That purchase has now been completed. As the then licensee has disposed of the premises to the respondent, no action was taken or indeed possible against the then licensee.

[7] The respondent is not new to the liquor industry. He has managed a rugby club in Dunedin for some 30 years. He says that he has an unblemished record. Both he and his wife hold General Managers' Certificates. However, his wife manages a hotel in Dunedin although she is able to help out at the “Poolburn Hotel” in the weekends. These days during the weekends she if often engaged in driving the courtesy van taking patrons to their homes.

[8] Since the incident the respondent has endeavoured to make changes to the operation of the premises. A courtesy van with appropriate signage has been acquired. Previously a shearer’s van was available for this purpose. In addition, patrons are encouraged to eat more. A barbecue with appropriate food is available for patrons at a small cost. Free water and coffee are advertised at the bar as being available.

[9] The respondent accepts that ss.166 and 167 of the Act were breached. Whilst there is evidence that earlier in the evening the respondent had announced that last drinks were being served, nevertheless more liquor was made available to the group. Ultimately, however, the respondent did appreciate the condition in which the group were and turned off the lights and locked one of the doors. The group took his hint and left the premises.

[10] Not only did the respondent breach ss.166 and 167 of the Act. He also failed to offer the group transportation to their homes. Knowing their intoxicated condition he did nothing to prevent them from driving away from the premises.

[11] In this case there is a correlation between the respondent’s deficiencies in the management of the premises and the death of the deceased. The most relevant decision of the Authority is Rhys Trevor Challenger LLA PH 419-420/2003 where the Authority ultimately suspended a manager’s certificate for three months. There were some mitigating circumstances. In that case the Authority said:

“[87] Mr Stevens suggested that an order for suspension of Mr Challenger’s certificate would be disproportionate to the respondent’s behaviour. The bald facts are that Mr Dalzell arrived at the hotel sober. He left the hotel drunk, and was subsequently killed by a motor vehicle because of his condition. The amount of alcohol in his blood was more than three times the legal limit for a driver of a motor vehicle. As we have indicated above the respondent had a legal duty not to allow him to become intoxicated. He failed in that duty.

[89] At issue then is the length of any suspension. Until now we have not had to face a situation where a person has been killed directly following an episode of drinking on licensed premises. In Alan Doyle 482/2002 we suspended the manager’s certificate for three months following a Police visit to an inner city bar where five minors were found on the premises. While we have repeatedly said that sales to minors are very serious as evidence by the changes that Parliament made to the Act in 1999, it does not compare with the present situation on the scale of seriousness.”

[12] In this case, the deceased together with his companions arrived at the hotel intoxicated. They remained there for a long time and continued to drink. The deceased was very intoxicated when he left. He drove a motor vehicle and was killed. The respondent had a legal duty not to allow him to become intoxicated and he failed in that duty. In terms of seriousness, this case is as bad, if not worse, than Challenger.

[13] This case is complicated by reason of the fact that the respondent together with his wife are the licensees of the “Poolburn Hotel”. Whilst both of them hold General Managers' Certificates, except for some weekends, the respondent is the only available general manager. It is not possible to employ other general managers as there are none available in this remote location. Thus any suspension effectively impinges on the licence.

[14] However, the respondent’s wife is often available during weekends and accordingly could act as a duty manager during the weekends when most of the business at the hotel occurs. Thus, the suspension of the respondent’s General Manager's Certificate will not have the effect of destroying the business although it undoubtedly would adversely affect it. How badly the business would be affected would depend upon the availability of the respondent’s wife to act as a duty manager.

[15] Whilst there are a few mitigating circumstances, it was significant that when the respondent told the Authority that he had taken some steps to improve his ability to determine intoxication, he did not mention that where a person has been drinking at the bar for a lengthy period that that person needs to be constantly monitored as to intoxication. Plainly this did not happen on 12 November 2010. It is essential if breaches of ss.166 and 167 of the Act are not to occur.

[16] The overall impression that the Authority gains is that the respondent has acquired the “Poolburn Hotel” for lifestyle reasons and plainly enjoys acting as “mine host”. The days of the jovial country publican are over. The obligations inherent in a licensee and general manager are detailed in s.115 of the Act. There is no excuse for allowing breaches of the Act and the consequential abuse of liquor to occur. This case graphically illustrates what can happen when a general manager fails to fulfil his statutory duties.

[17] Taking all these factors into account, in terms of s.135(6) of the Act it is desirable that an order be made suspending the respondent’s General Manager's Certificate. The Certificate is suspended for three months commencing 19 September 2011.

[18] Whilst the Authority considers that it is appropriate that the General Manager's Certificate be renewed, nevertheless, it should be for a truncated period. No doubt during that period the respondent’s conduct in respect of the premises will be closely monitored. His General Manager's Certificate is renewed for 12 months from 5 August 2011.

DATED at WELLINGTON this 6TH day of September 2011

B M Holmes
Secretary

George Morris.doc(aw)