THE LICENSING ACT.

Otago Witness, Issue 3335, 13 February 1918, Page 45

THE LICENSING ACT.

ENTERTAINING THEATRICAL ~* FRIENDS. A RESTAURANT KEEPER CONVICTED At the City Police Court on the 4th Mr J. R. Bartholomew, S.M., gavo his reserved judgment in the case Poiico v. Andrew Bremner a charge of permitting liquor to bo drunk in a restaurant, to wit, a fish shop at the corner of High and Fleet streets, at a timo when licensed premises wore required to be closed under the amended licensing legislation of last session. The Magistrate, in delivering his judgment said :—The police were attracted - to the. premises by the sounds of revelry, and on entering found 16 persons—male and female members of the Johnson Revue Company, having a social evening. There. wer« empty beer bottles and glasses in the kitchen and scullery. Defendant, on being interrogated, said ho was giving an everting to the Johnson Revue, party, who had. been customers of his; that he bought a ' dozen of ale from Powloy and Keast, of which !1 bottles had been consumed, and he kept one for himself. Povvley and Keast's receipt was produced to the police. Defendant also said to tho police that he thought he had a right to provide the liquor;! that he lived on the premises, and considered tha premises were closed at 11 p.m. Defendant did not give evidence, but his counsel explained that the Johnson party ihad been customers of defendant; he entertained them at the end of their season.,' There was n<t evidence to,show that the liquor was con* sumed in tho rooms in which meals ar« supplied to the public. Defendant's counselcontended that the above facts disclose na offence—that "restaurant" means the room pr rooms which are open to tho general public for tho supply of food and refreshments, but also that tho proprietor of,a„ restaurant has the same right as any" other person to entertain his private irienusr Hi* Worship went on to quote the definitions • in the Sale of Liquor Restriction Act and , the Licensing Acts, said th.it the con< elusion seems to, be irresistible that a restricted meaning cannot be given to • re* taurant premises as limited t 6 a parti'culaC room, or rooms, but that the whole buildin<r is included. ' With regard to counsel's second contention as to tho proprietor's rights of entertaining, it is ,tho common law right of every man to entertain his guests as he likes. The Legislature may limit: thisright. The position of an hotelkeeper was" considered by tho Full Court in Ryland v. Foley. It was there decided that section * 155 of "The Licensing Act. 1831," : did not make it unlawful for a licensee to entertain a bona fide guest with liqupTj 'oufTng closing hours. The- decision" proceeded on the ground that the section was ; ambiguous, and so the licensee's common .law right should not be ""Regarded as being ~; taken away. A contrary : decision, however, was given in Batt v. Cullen, where the person, supplied was a customer and not a personal friend bona fide entertained-by tho licensee. Tho realtionship between th# parties in the present case resembles, that in Batt v. Cullen, and not that in Ryland v. Foley. This, however, I dp not think i* a material oircumstanue in the present case. In Ryland v. Foley Denniston J. make* these pertinent rdmarks, which directly apply to this case: "As I said before, the section is far from clear. It would have been perfectly easyifor the Legislature to provide that liquor should not be allowed to be consumed' during closing hours, and then to provide certain named exceptions.", The language of section 11 is plain : (1) Any person (except tho occupier or any member of his family dwelling on the premises. or ..any of his servants) who at any time while licensed premises aro required to be closed drinks liquor in any restaurant commits an offence. (2) Any person who permits or allows any liquor to be drunk (unless by the persons excepted in tho last preceding subsection) in any restaurant at any time while licensed 1 premises are required to be closed commits an offence. There is an absolute prohibition, with certain excepted persons, one of whom is the occupier himself. Tho fact : that this exception is made shows that thero are no implied exceptions, but that the prohibition is absolute save only so far as express exceptions are made. The result, therefore, is that the defendant is. guilty of tho offenco charged. This is new legislation and is very far-reaching in its consequence?. Defendant acted bona fide and in the hell A that he was within his rights. He will bo convicted and ordered to pay court costs (7s).