Publicans, Licensees Contest 'Flawed' Charges

By Andrew Starke

Pub owners and licensees are increasingly able to mount a vigorous defence to police or regulatory body charges of ‘Licensee Permit Intoxication’, according to a Sydney solicitor.

Archbold Legal Solutions solicitor, David Sylvester, told TheShout that recent local court decisions in NSW relating to ‘Licensee Permit Intoxication’ breaches have set a precedent, which should be kept in mind over the coming months.

This applies to dealing with the police, NSW Police Alcohol Licensing Enforcement Command (ALEC) or Office of Liquor Gaming & Racing (OLGR) officials.

“In a recent incident, the licensee of a hotel in Oxford Street precinct was breached by inspectors from the OLGR,” said Sylvester. “Despite the advice of many people within the industry who suggested that he simply pay the fine rather than awaken the sleeping giant, the licensee defended the matter at court and was successful.”

In his summation, the magistrate expressed the view that the methods used by inspectors (including the police) to determine whether a person was ‘intoxicated’ were flawed because they did not speak to the alleged intoxicated person/s but rather made assumptions based on their observations.

Sylvester, who represents numerous hotels and clubs, believes this decision has the potential to create substantial problems for the OLGR and the police considering that they have used similar investigative methods to determine the intoxication levels of patrons at hundreds of other hotels over the past 12 months.

“This issue came to a head last month (December 2009) when the OLGR withdrew two ‘Licensee Permit Intoxication’ breaches against another large Eastern Suburbs Hotel based upon flawed investigative techniques,” he said.

“Licensees should remain vigilant when dealing with regulatory agencies and the police. As has been revealed in recent administrative review matters (licensing conditions) at the Casino Liquor & Gaming Control Authority, the information relied upon by the police and other government agencies has been shown in some cases to be totally inaccurate or unable to be used in evidence as it has not been independently verified.”

Further, as Sylvester points out, even if a person has been found to be intoxicated on licensed premises, this fact alone is not sufficient to prove a charge of Licensee Permit Intoxication.

Recent case law dictates that if a licensee takes all reasonable steps to reduce the opportunity for intoxication on their premises, this may provide a defence to an intoxication breach.

“Obviously each matter will be dealt with on its own merits,” Sylvester said. “However, as the judge in this case espoused, licensees cannot realistically be expected to reduce intoxication to zero percent. This is especially relevant to larger type venues during peak trading periods.”

This implies that licensees who have put stringent practices and procedures into place - designed to reduce the incidence of intoxication - should have nothing to fear from regulatory agencies.

“Clearly, licensees who go above and beyond their obligations to ensure licensing compliance through the provision of water and food to patrons and the responsible service of alcohol will always be one step ahead of the game,” he said. “As such, the flow-on effects of reducing the opportunity for intoxication and associated alcohol related violence can be realised.”

Sylvester can be contacted on (02) 8585 8484.