McGlone v De Bier Haus [2012] NZLLA 891 (7 August 2012)

Last Updated: 23 August 2012

[2012] NZLLA PH 891-893

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 021ON/10499/2008 issued to MGM1 LIMITED in respect of premises situated at 109-110 Strand, Tauranga, known as “De Bier Haus”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for the suspension of General Manager's Certificate 068/GM/152/02 issued to MATTHEW KEEBEL HAYWARD

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager's Certificate number 021/GM/11055/2008 issued to KELLY ANNE FISHER

BETWEEN NIGEL PETER McGLONE

(Police Officer of Tauranga)

Applicant

AND MGM1 LIMITED

First respondent

AND MATTHEW KEEBEL HAYWARD

Second respondent

AND KELLY ANNE FISHER

Third respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Mr P M McHaffie

HEARING at TAURANGA on 27 July 2012

APPEARANCES

Sergeant N P McGlone – NZ Police – applicant
Mr M K Hayward – on behalf of first and second respondents
Mrs K A Fisher – third respondent

DECISION OF THE AUTHORITY

[1] This decision relates to three enforcement applications. The first seeks the suspension of the on-licence issued to MGM1 Limited in respect of premises known as “De Bier Haus”. The second seeks the suspension of the General Manager's Certificate issued to Mr Hayward (who is the sole director of the licensee). The third application seeks the suspension of the General Manager's Certificate issued to Mrs Fisher.

[2] At the hearing the facts were agreed.

[3] On 18 September 2011 three persons were assessed as being too intoxicated to be on the premises. The duty manager was Mr Hayward. Breaches of ss.166, 167 and 168(1) of the Act were admitted.

[4] Between 12.50 am and 1.35 am on Sunday 16 October 2011 five patrons were assessed as being too intoxicated to be on the premises. The duty manager was Mrs Fisher. Sections 166, 167 and 168(1) of the Act had been breached.

[5] Between 10.50 pm and 11.19 pm on Sunday 16 October 2011 three patrons were assessed as being too intoxicated to be on the premises. The duty manager was Mr Hayward. There was an admitted breach of s.168(1)(a) of the Act.

[6] On 27 November 2011 a 16 year old Brazilian student was assaulted on the premises. He, and another Brazilian student (both aged 16) gained entry to the premises in breach of s.164(1) of the Act. One of the 16 year old students purchased two alcoholic drinks from the bar and accordingly a breach of s.155 of the Act occurred. The assaulted student received severe injuries to his face. Both students have returned to Brazil.

[7] With the grounds of each application having been admitted, the only issue for the Authority was to determine in accordance with s.132(6) and s.135(6) of the Act as to whether it is desirable that suspensions be imposed. In each case the Authority concludes that suspensions should be imposed.

[8] The suspension affecting the licensee will be for a lesser period than the agreed facts warrant. This is because the licensee has admitted Police allegations which the Police were not in a position to prove. Thus he has shown a responsible attitude to the proceedings. The second reason that the period of suspension is truncated is that since the incidents (all of which occurred during the time that the Rugby World Cup was being played in New Zealand) the licensee has instituted many improvements in the way in which the premises are operated. The licensee is entitled to considerable credit for these initiatives. Included in the improvements which have occurred since the incidents are the following:

• [a] A security firm has been hired to supplement the licensee’s own security people;
  
• [b] A cover charge has been imposed at the door on busy nights. The cover charge is for $5. Upon entry the patron is given a can of Red Bull drink. Whilst this is being done, the patron is assessed to make certain that he or she is not intoxicated;
  
• [c] A quality low alcohol beer has been introduced and is served to patrons if it is determined that they have been drinking more than they should have;
  
• [d] Door staff wear bright pink shirts to make them visible to the Police;
  
• [e] Where possible, at least two certificated managers are on duty when the premises are busy;
  
• [f] A one way door policy has been introduced from 2.00 am;
  
• [g] Shots are no longer served after 2.00 am;
  
• [h] A tougher dress code has been implemented;
  
• [i] A security log book is now kept;
  
• [j] Weekly meetings with the staff are held so that host responsibility matters, liquor licensing matters, and a review of the week’s activities can be considered.
  

[9] In the circumstances, the Authority agrees with the proposals submitted to it by the respondents and the applicant.

[10] The on-licence issued to MGM1 Limited is suspended for two days commencing 7.00 am on Saturday 22 September 2012. (The Police submitted that the suspension should include the preceding Friday: The Authority disagrees. The incidents occurred on a Saturday and Sunday).

[11] The General Manager's Certificate issued to Matthew Keebel Hayward is suspended for 30 days commencing 20 August 2012.

[12] The General Manager's Certificate issued to Kelly Anne Fisher is suspended for 30 days commencing 24 September 2012.

DATED at WELLINGTON this 7th day of August 2012

B M Holmes
Secretary De Bier Haus.doc(aw)