LICENSEES RESPONSIBILITY

Wanganui Chronicle, Volume LXXXIII, Issue 19512, 15 February 1926, Page 2

LICENSEES RESPONSIBILITY

FOR ACTS OF AGENTS. INTERESTING JUDGMENT DELIVERED. An interesting judgment of the responsibility of a hotel licensee for the acts of his agent was delivered by Mr. H. W. Bundle, S.M., in the Magistrate’s Court at Dunedin. James Cullen, licensee of the Southern Hotel, had been charged with unlawfully opening his premises for the sale of liquor during prohibited hours and with selling liquor. Alexander Al ’Donald was charged that being a person other than the licensee he did sell liquor during prohibited hours to a person, who, by law, was not entitled to be supplied. Mr. A. C. Hanlon appeared for the defendants.

In the course of his judgment, the Magistrate said that M‘ Donald had pleaded guilty to supplying, but Cullen had pleaded not guilty, claiming that any sale was made without his authority and that he took no part in the sale. The rcsopnsibility of the licensee in regard to the acts of his agenl, whether a barman or other employee, had been the subject of much judicial discussion. A decision by Mr. Justice Hoskings quoted by the Magistrate was to the effect that when the person supplying the liquor was not the barman, the responsibility of the licensee had to be decided on the whole facts of the case. Cullen, in his Worship’s opinion, was responsible for the acts of M‘Donald. The latter was the licensee’s father-in-law, and resided on the premises. He was financially interested in the hotel to an extent of £lOOO, au l assisted in the bar and in the management of the hotel. Air. Bundle said that he found it difficult to imagine a case in which the authority of an agent Ito sell could be stronger than in the i present case.

Mr. Hanlon pointed out that his Worship had made no specific reference to his (Mr. Hanlon’s) argument that th? sale was not made in the hotel, but in the right-of-way. That question could be argued later, but in the meantime he was interested in the question of penalty, as the magistracy considered it. proper that licensees should be endorsed, if it were proved that the licensee was definitely interested in the transaction. Air. Hanlon submitted in this case that the licensee had not been proved to be interested; the only incident that could lend colour to the guilty knowledge that when the constable had telephoned the hotel and had asked for the “boss,” there had been a change of voice at the hotel telephone. Mr. Hanlon considered that incident did not justify endorsement m the license. The magistracy had decided, and quite properly in his opinion, that when a licensee chose to take the risk, his license must be endorsed.

; The Magistrate stated that perhaps i he might have given more considerxj tion than Jic had to the point raised, I whether the sale had take place ou the ! premises. He was, however, of the j opinion that the sale was complete! j when the order was accepted in the i hotel. The fact that delivery was made outside of the hotel was immaterial, as the place of delivery was not the place of sale. He (Mr. Bundle) recognised that it was a serious penalty if the license were endorsed with a conviction. The general rule was, and is, that unless it were shown that the licensee had knowledge, or was presumed to know, of the sale, the license was not endorsed. In the present case he had considered the surrounding circumstances, and it was true that there was no direct evidence that the licensee I knew of the transaction. In the present case, the father-in-law was in such a position that if he broke the provisions of the Licensing Ad, the licensee must be penalised as if he, himseU, had broken th© law. The licensee would be convicted and fined £5, and the license would be endorsed. On Air. Hanlon’s request, the magistrate increased the fine to £5 Is to allow an appeal to be made. AD Donald was fined 40s and costs.

The charge against Cullen of opening his premises for the sale of liquor during prohibited hours was withdrawn by the police.