McGlone v The Drawing Room [2012] NZLLA 857 (30 July 2012)

Last Updated: 22 August 2012

[2012] NZLLA PH 857-858

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 021/ON/2984/2001 issued to TWO SMALL FISH LIMITED in respect of premises situated at 107 Maunganui Road, Mt Maunganui, known as “The Drawing Room”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager's Certificate number 021/GM/24745/2011 issued to NATHAN TRENT CLARKE

BETWEEN NIGEL PETER MCGLONE

(Police Officer of Tauranga)

Applicant

AND TWO SMALL FISH LIMITED

First respondent

AND NATHAN TRENT CLARKE

Second respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at TAURANGA on 25 July 2012

APPEARANCES

Sergeant N P McGlone – NZ Police – applicant
Ms S J McBeath – agent for respondents

DECISION OF THE AUTHORITY

[1] This decision deals with two enforcement applications, the first is an application for the suspension of the on-licence issued to the respondent in respect of the premises at Mt Maunganui known as “The Drawing Room”. (“The Drawing Room” is a restaurant). The second is an application for the suspension of the General Manager's Certificate issued to Mr Clarke.

[2] Prior to the hearing, the parties negotiated a settlement. The Authority refused to endorse the settlement as it seemed to the Authority that the factual scenario was so serious that more severe suspensions were appropriate. Having heard the parties, the Authority is now prepared to accept the terms of the negotiated settlement.

[3] The allegations pertaining to the incident of 22 March 2012 seem to justify the alleged breach of s.167 of the Act (allowing a person to become intoxicated) and s.168(1)(b) of the Act (allowing quarrelsome, insulting or disorderly conduct to take place on licensed premises). The Authority doubts that breaches of ss.165, 166 and 167 of the Act occurred. The allegation was that the licensee had supplied liquor to himself (as an intoxicated person) and had allowed himself to become intoxicated (in licensed premises after hours).

[4] However, the allegation that the conduct of the licensee is such as to show that he is not a suitable person to hold a licence is undoubtedly justified. In particular, on 22 March 2012 a director of the licensee, Mr Clarke, was intoxicated on the premises. He had an altercation with another person on the premises which was sufficiently serious to involve the Police.

[5] The application also alleges that on 29 April 2012, after the premises were closed for the sale and supply of liquor, Mr Clarke was seen by an Inspector touching and kissing a woman in full view of the public but within the premises. While such behaviour is unlikely to be conducive to the operation of a successful business, it is unlikely that it is sufficiently serious as to warrant a finding of unsuitability against the licensee.

[6] Nevertheless, the overall conduct of Mr Clarke as a director of the licensee was unsatisfactory and we agree with the Police allegation that he has proved that he (and therefore the licensee itself) was not a suitable person to hold the licence.

[7] Accordingly, the on-licence is suspended for three days commencing 7.00 am, Tuesday 21 August 2012.

[8] The statutory breaches alleged in the application for the suspension of the General Manager's Certificate held by Mr Clarke were not sustained as it seems that he was not the duty manager at the time the various incidents took place. Nevertheless, his conduct as detailed in the preceding paragraphs was such as to show that he is not a suitable person to hold a General Manager's Certificate.

[9] In these circumstances the General Manager's Certificate is suspended for 30 days from 7.00 am on Monday 27 August 2012.

DATED at WELLINGTON this 30TH day of July 2012

B M Holmes
Secretary

The Drawing Room.doc(aw)