Formosa and Sheehan v Billy Burkes Irish Bar [2012] NZLLA 1062 (26 September 2012)

Last Updated: 16 October 2012

[2012] NZLLA PH 1062-1066

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of applications pursuant to s.132 of the Act for suspension of on-licence number 030/ON/21/08 issued to GUYTON LIMITED in respect of premises situated at 246 Gloucester Street, Napier known as “Billy Burkes Irish Bar”

BETWEEN NIGEL ANDREW VINCENT FORMOSA

(Police Officer of Napier)

AND JASON PAUL SHEEHAN

(Napier District Licensing Agency Inspector)

Applicants

AND GUYTON LIMITED

First respondent

AND

IN THE MATTER of applications pursuant to s.135 of the Act for suspension of General Manager's Certificate number GM/030/2653/2011 issued to DAVID STANLEY STRANGE

BETWEEN NIGEL ANDREW VINCENT FORMOSA

(Police Officer of Napier)

AND JASON PAUL SHEEHAN

(Napier District Licensing Agency Inspector)

Applicants

AND DAVID STANLEY STRANGE

Second respondent

AND

IN THE MATTER of an application by GUYTON LIMITED pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at 246 Gloucester Street, Napier known as “Billy Burkes Irish Bar”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at NAPIER on 20 September 2012

APPEARANCES

Sergeant N A V Formosa – NZ Police – applicant and in opposition to application for renewal of on-licence
Mr J P Sheehan – Napier District Licensing Agency Inspector – applicant and in opposition to application for renewal of on-licence
Mr J M Petrowski – on behalf of first respondent
Mr D S Strange – second respondent

DECISION OF THE AUTHORITY

[1] There are five applications for consideration by the Authority.

[2] The first two applications are brought by the Inspector. The facts relating to each application were admitted by each respondent.

[3] The first two applications allege that on 23 June 2012 a controlled purchase operation took place at the licensed premises. Two volunteers under the age of 18 were sold a glass of beer and apple cider respectively. The female staff member failed to ask either volunteer their age or request any form of identification. Mr Strange was the duty manager at the time. He was present in the premises but failed to see the transaction take place.

[4] The second two applications relate to an incident which occurred at the premises on 17 March 2012 (St Patrick’s Day). The Police conducted a compliance check at the premises. The premises were exceedingly busy. The duty manager was Mr Strange. The sole director of the licensee was present as was Mr Petrowski. The bar and the outside area were both extremely crowded. Because the bar was so full there was nothing that the door staff could do to prevent intoxicated patrons entering the bar and merging with the crowd. The front area was so full of patrons that the boundary fences were pushed outwards into the middle of the footpath, which meant that patrons were drinking in an unlicensed area. At least three of the patrons were assessed by the Police as exceedingly intoxicated. However, the Police conservatively estimated that at least 30 percent of the crowd were intoxicated to such a degree that they should not have been on the premises. This was conceded by the licensee.

[5] Ultimately the duty manager (Mr Strange) agreed that he would close the premises and this was done some time later.

[6] The licensee has had a chequered career which was admitted:

• [a] On 13 December 2006 it was issued with a warning by the Police for allowing patrons to drink outside the licensed area.
  
• [b] On 22 November 2007 it was issued with a warning by the Police for failing to notify the appointment of a duty manager.
  
• [c] On 22 November 2007 it was issued with a warning by the Inspector for allowing patrons to drink outside the licensed area.
  
• [d] On 28 July 2008 the on-licence was suspended for 24 hours for failing to conduct the premises in a proper manner by allowing patrons to drink outside the licensed area.
  
• [e] On 19 February 2009 the on-licence was suspended for 24 hours in respect of a failed controlled purchase operation.
  
• [f] On 19 June 2010 the Police issued a warning in respect of an intoxicated male being found on the premises.
  
• [g] Finally, on 21 January 2012 the Police issued a warning after they found two intoxicated female patrons inside the premises.
  

[7] On the last two occasions the duty manager was Mr Strange.

[8] The Authority appreciates that the licensee has endeavoured to make some changes to its systems to prevent a recurrence of the problems. However, at the hearing it took some time for Mr Petrowski, representing the licensee and Mr Strange to appreciate that, when they learned that the security people contracted to assist in controlling the premises were not arriving, the premises should have been closed. It is quite clear that on the evening of 17 March 2012 the patrons had become out of control. The fact that approximately 30 percent of them were intoxicated is disturbing.

[9] What is also disturbing is the fact that the duty manager did not seem to appreciate on 17 March 2012 that he was the person in charge of the premises. It seems that he deferred to both Mr Petrowski and Mrs Petrowski (who is the sole director of the licensee).

[10] Insofar as the licensee is concerned, a mitigating factor is the fact that the licensee admitted the facts. The failed controlled purchase operation warrants a 48 hour suspension as this is the second occasion that this has occurred. In respect of the 17 March 2012 incident, this is the second that the Authority has learned of similar behaviour by the licensee. In the circumstances a three day suspension in respect of that matter is warranted.

[11] Accordingly, the on-licence issued to Guyton Limited is suspended for a period of five days commencing at 7.00 am on Thursday 11 October 2012.

[12] In respect of the application affecting Mr Strange, credit is given for the fact that at the time of the failed controlled purchase operation he was present on the premises. He did not make the sale. Efforts had been made to prevent the young person effecting the sale but she had failed to listen to advice given to her. In the circumstances a 20 day suspension is justified in respect of that matter.

[13] In respect of the incident of 17 March 2012, the facts indicate serious failures by Mr Strange. However, he is entitled to credit for his inexperience as a duty manager and for the lack of assistance afforded to him by the licensee. In the circumstances a suspension of 40 days is warranted. Accordingly, Mr Strange’s General Manager's Certificate is suspended for 60 days commencing 7.00 am on Monday 15 October 2012.

[14] The final matter to be considered is an application by the licensee for the renewal of its on-licence. This application was opposed by both the Police and the Inspector for the reasons set forth in the enforcement applications. When considering an application for the renewal of an on-licence it is for the licensee to satisfy the Authority as to its suitability and that it has conducted the sale and supply of liquor pursuant to the licence in a satisfactory manner. The enforcement applications indicate serious problems in this regard.

[15] It was apparent at the hearing that the licensee was unaware of the serious situation in which it found itself. In the circumstances, the applicant requested the Authority to adjourn this application in order that the applicant can obtain legal advice. This application was not opposed by either the Police or the Inspector.

[16] Accordingly the application for the renewal of the on-licence is adjourned to such date as the Secretary of the Authority shall direct.

DATED at WELLINGTON this 26th day of September 2012

B M Holmes
Secretary

Billy Birk’s Irish Bar.doc(aw)